On June 27 (one day after Heller), the National Rifle Association filed five lawsuits, seeking to apply the Second Amendment to block gun control laws adopted by local governments in California and Illinois.
[quote]jsbrook wrote:
Sifu wrote:
JS you still have not explained how things have changed. Then you bring up the Patriot act. Get a clue things may be changing, but not for the better. In this era of ever greater powers ofgovernment surveilance and control the right to keep and bear arms is needed more than ever.
The United States has muddled along perfectly well for over two hundred years without the government keeping a comprehensive database of firearm ownership.
There may be an interest in keeping porn off of public tv, just like there may be an interest in keeping firearms out of bars where people are getting drunk and stupid. However there should never be a compelling interest for the government to keep a comprehensive database of everything we say or write, from the cradle to the grave. It would be a very ominous development if the government were to make such a demand into law.
The same thing applies to firearm ownership. It would be a very ominous development for the government to demand and keep an extensive database of firearm ownership along with a database detailing activities relating to firearms use. ie gunclub membership or militia membership.
The founding fathers intended for us to have privacy from the government for a reason. They had spent many years suffering from gross intrusions into their privacy by the British government. Intrusions that had gone so far as to see the stationing of soldiers in private homes.
Your problem is that since you have never had to suffer from that kind of government intrusion you can’t see the harm that it can cause. You are one of those people who can’t see a problem until you are in it up past your eyeballs.
Oh, really? What government intrusion have YOU suffered?
[/quote]
That is irrelevant to this discussion. Also it is reflective of a very dangerous attitude. We should not have to suffer the infringement of our rights before we can speak out in defense of those rights.
The founding fathers had to suffer the intrusion into their lives by his majesties government. They did it for us and learned invaluable lessons. The problem today is they did such a good job of protecting future generations of Americans from the kinds of governmental abuse that they had to go through many have become overly complacent and take it for granted that they won’t have to suffer the same abuse.
On the 4th of July we have reenactments of the revolutionary battles where there are standing armies shooting back and forth at one another. What we don’t see reenacted is what got us there. There is an over emphasis on when we had an army raised, armed and trained to march and to fight the British, but what is being dangerously neglected is just how hard it was to raise and equip that army.
It took people like Benjamin Franklin getting King Louis of France to send so much men and materiel that it bankrupted the French treasury which resulted in the French revolution and King Louis execution.
Or Jewish banker, Haym Solomon raising millions of dollars from Europes Jews for the cause. Remember that next time someone says Israel doesn’t deserve our support.
We reenact the battles but we ignore the much more important logistics. As German Field Marshall Rommel said, “long before the first shot is fired in a battle it is the logisticians who have decided the outcome”.
What we need more than reenactments of the battles is reenacments of men without the neccessary supplies like clothing or shoes starving freezing and starving at Valley Forge.
We need reenactments of just how hard it was to cobble together the means of resisting British rule. And what it was like to be under that rule with British soldiers living in peoples houses monitoring their conversations, or peering over their shoulder to see what they are writing in their letters.
The constitution becomes much more logical when you learn about the pre-revolutionary period and the logistics of the revolution.
[quote]
I fully see the harm it can cause. [/quote]
No you don’t.
[quote]
And that’s why any regulation that limits a funadmental right has to be extremely circumscribed and necessary to serve an exgtremely compelling interest. This is not an easy test to satisfy. Not by any means. The common quip is, ‘Strict in theory. Fatal in fact.’ Almost no regulations limiting fundamental rights are upheld. But the ones that are damn well should be.
I alluded to how the world has changed in a previous post. [/quote]
You have alluded but you have not back it up with any credible examples. The reason why you haven’t backed up what you are saying is because you can’t.
Only the bare minimum of regulation should ever be tolerated. And the right should be vigorously defended because too many patriots died because of the lack of proper equipment.
[quote]jsbrook wrote:
PRCalDude wrote:
JD430 wrote:
jsbrook wrote:
So, let’s try this instead…forget about licensing and registration. What, if any, regulations do you guys think are acceptable?
I forgot one “regulation”…
Enforce the damned rape, kidnapping, agg. assault, burglary, homicide etc. laws to the utmost and keep these guys in jail forever(or kill them, if it warrants). Toss the gang members and terrorist-sympathizers in there for RICO violations and lock away the low-level repeat offenders for a long time too.
a lot of those problems would go away with more CCW and a culture of self-defense, would they not? I mean, men would be less inclined to rape if they knew they had a higher probability of having a .357 hole or two made in them.
You know, I almost tend to agree with you. But let’s call a spade a spade. If you’re talking about going after someone who’s ALREADY committed a rape, that’s called justifiable revenge. Not self-defense. As far as actual self-defense goes, it IS permissible to use deadly force to prevent serious crimes like rape. At least it is in New York, and New York is one of the more pacifist jurisdictions. So, I suspect this is also the case most other places. Actually, I know it is. It varies from jursidiction to jurisdiction. But the MAJORITY rule is that it’s permisslbe to use deadly force to prevent ‘dangerous felonies’ involving the risk to human life. In most places, robbery, arson, and burglary of a dwelling make the list. Rape too in a lot of places.[/quote]
You totaly ignore the most salient point. In New York it may be legal for women to shoot someone trying to rape them but it is not legal for women to have a gun to defend themselves with when they are out in public unless they have a CCW which is not widely available.
So if a woman were to defend herself against a rapist she may get off with justifiable homicide from the rape defense but if she doesn’t have a CCW and she is out of the house, she will be open to a variety of criminal charges that can destroy her life worse than the rape.
[quote]Loose Tool wrote:
jsbrook wrote:
As far as actual self-defense goes, it IS permissible to use deadly force to prevent serious crimes like rape. At least it is in New York, and New York is one of the more pacifist jurisdictions. So, I suspect this is also the case most other places. Actually, I know it is. It varies from jursidiction to jurisdiction. But the MAJORITY rule is that it’s permisslbe to use deadly force to prevent ‘dangerous felonies’ involving the risk to human life. In most places, robbery, arson, and burglary of a dwelling make the list. Rape too in a lot of places.
Actually, some jurisdictions that profess to allow the use of deadly force (like Massachusetts) actually only allow it as an affirmative defense. Therefore, if someone uses successfully deadly force to prevent an imminent thread of serious bodily harm, they still get charged with murder.
(Chapt. 278, Section 8A. In the prosecution of a person who is an occupant of a dwelling charged with killing or injuring one who was unlawfully in said dwelling, it shall be a defense that the occupant was in his dwelling at the time of the offense and that he acted in the reasonable belief that the person unlawfully in said dwelling was about to inflict great bodily injury or death upon said occupant or upon another person lawfully in said dwelling, and that said occupant used reasonable means to defend himself or such other person lawfully in said dwelling. There shall be no duty on said occupant to retreat from such person unlawfully in said dwelling.))
On the other hand, in a place like New Hampshire, a person is justified in using deadly force upon another person when he reasonably believes that such other person:
i Is about to use unlawful, deadly force against the actor or a third person;
(b) Is likely to use any unlawful force against a person present while committing or attempting to commit a burglary;
(c) Is committing or about to commit kidnapping or a forcible sex offense; or
(d) Is likely to use any unlawful force in the commission of a felony against the actor within such actor’s dwelling or its curtilage.[/i]
http://www.gencourt.state.nh.us/RSA/html/LXII/627/627-4.htm
In sum, justifiable use of deadly force (in defense of yourself or others, either in or outside your house) in NH is not even a crime. As between NH and Mass (or NY for that matter) I’d rather live in a place and not be charged with a crime for protecting myself. The other thing is, while states like Mass profess to allow deadly force, if you are too young, too old, too weak how really do you protect yourself against a hell bent thug if you have no access to a gun?
I dated a girl whose ex-husband was in prison for the murder of both of her parents. She applied for a carry permit for “all lawful purposes”. The local PD gave her one, but only for target shooting. In other words, she couldn’t carry outside her home.
[/quote]
I am almost positive that use of force (deadly or otherwise) is an affirmative defense in every jursidiction, including New Hampshire. You would still be charged with a crime in New Hampshire. How else would it work? They take your word for it? “Officer, I know I just killed this man, but I reasonably believed he was going to rape me.” “Ok, Ma’am, you have a good night. Drive home safely.” No, that doesn’t happen. You go to trial, and you show you reasonably believed that a crime was imminent.
Of course, everything is subject to prosecutorial discretion. If it’s abundantly clear, you might not be charged at all. But you still proceed to trial if you’re charged. And you get to show you were jusitifed either as a matter of self-defense, defense of others, or to prevent a serious felony. If you do, you get off. As to your second point, I agree.
Oh well, let them eat cake.
[quote]Sifu wrote:
You have alluded but you have not back it up with any credible examples. The reason why you haven’t backed up what you are saying is because you can’t.
[/quote]
I can’t? On the contrary. Regulations that have been upheld limiting fundamental constiutional rights like free speech are in the single digits. Name some laws and regulations in these areas that AREN’T appropriate. Start with just one. Work your way up from there. I am genuinely curiously to see if you come up with anything.
[quote]jsbrook wrote:
PRCalDude wrote:
jsbrook wrote:
PRCalDude wrote:
But let’s call a spade a spade. If you’re talking about going after someone who’s ALREADY committed a rape, that’s called justifiable revenge. Not self-defense. As far as actual self-defense goes, it IS permissible to use deadly force to prevent serious crimes like rape.
Technically, it’s true that you can use deadly force to prevent a rape. But women can’t use dead force unless they have a gun because most are a lot weaker and less violent than men. That was one of the original points of a derringer - for women to protect themselves. If you’re a women living in a place with strict gun control like Los Angeles, you just have to hope nothing happens I guess.
True enough. I think a lot of the gun control laws are going to go by the wayside after this ruling. But some will remain. Like preventing convicted felons from owning and using guns. Though I do agree with the previous post that there should still be some right to repetition after a time and the ability to regain use on a showing that you’re now a law-abiding citizen.
I don’t, in principle, have a problem with preventing felons from owning guns through some sort of background check. The problem is, the busybodies in teh various legislatures feel the need to creep that background check into various other things as well, like psychological problems. What if you go to a psychiatrist for a bout of depression? Should you then be barred from owning a gun?
Well, it’s a tough line to walk. Obviously there is a compelling interest in preventing the mentally incompetent and paranoid schizophrenics from owning guns. A distant cousin of mind is actually petitioning to get his guns back now. He shouldn’t. He was convinced there was a conspiracy of people out to get him. His family had him committed. He’s out now. But you just KNOW the guy is still not right in the head within a few minutes of talking to him. On the other hand, low-grade depression certainly shouldn’t deny someone their right to bear arms.[/quote]
The glaring problem with using mental competance as a limiting factor is this. Psychiatric and psychological diagnosis are completely subjective. All it takes is for some shrink to say someone is nuts and they lose their rights.
Also it should not be forgotten that civil rights laws do not apply to psychiatry. ie if you excercise your fifth amendment right against self incrimination, the shrink can say that you are uncooperative and refused to participate in treatment making you highly dangerous.
Or if you ask for a second opinion, the shrink can say that when confronted with his diagnosis you refused to accept it, which means you are delusional about you condition, which is a symptom of insanity.
Innocent till proven guilty does not apply either. If a shrink says your are crazy you have to disprove it. But if you try to disprove it, that can be held against you and used as comfirmation of your guilt. This is why the mental competence exclusion is such a dangerous one.
Entire groups of people have in the past been judged mentally incompetent. Homosexuality was at one time considered a form of mental illness. Also minority groups like blacks have at one time been considered to be mentally incompetent for no other reason than they were black.
Stalin used to send political opponents to mental hospitals. Making peoples civil rights conditional upon their subjective mental condition is a very slippery slope.
[quote]jsbrook wrote:
Moriarty wrote:
jsbrook wrote:
Well, it’s a tough line to walk. Obviously there is a compelling interest in preventing the mentally incompetent and paranoid schizophrenics from owning guns. A distant cousin of mind is actually petitioning to get his guns back now. He shouldn’t. He was convinced there was a conspiracy of people out to get him. His family had him committed. He’s out now. But you just KNOW the guy is still not right in the head within a few minutes of talking to him. On the other hand, low-grade depression certainly shouldn’t deny someone their right to bear arms.
How would the federal government even be able to tell that someone is “mentally incompetent” without access to their medical records?
Who defines “mentally incompetent”, the government?
How do you feel about a simple “competence test” being required before voting?
No, there is a trial, and a person is adjudged mentally incompetent by a jury or judge. I believe it’s a jury trial but am not sure. So, it’s not a ‘simple competence test’ at all but an extensive process by which a jury of peers or a judge only finds mental incompetence based upon a pretty compelling showing and pretty egregious evidence of lack of capacity. I would not be particularly bothered in respect with voting. Since I prefer that paranoid and delusional schizophrenics who believe people who are out to get them and who may be subject to hallucinations not have access to deadly weapons, I’d be ok with it in this case too. And there is a presumption of competence. I’m not talking about administering a competency test as a requirement to owning a gun. I’m talking about not giving guns to people who have already been adjudicated mentally incompetent. This is why background checks are necessary. If you’ve been adjudicated incompetent, are a convicted felon, have been institutionalized, etc… it comes up on a background check. You don’t get a gun. If your background is clean, the government doesn’t get to and shouldn’t get to make you jump through hoops and make a showing that you deserve a gun. You simply get your gun.
[/quote]
You are seriously clueless about how the system works. I had a girlfriend who was diagnosed and forced on psychiatric drugs by a “school psychiatrst”, (In Michigan it is a two year degree without medical school) someone who is unqualified to be making psyciatric diagnosis.
When the methamphetamine (ritalin) they fed her made her aggressive the school had her committed and put on the antipsychotic medication depacote.
There was no jury trial or due process her rights were brutally violated. She can’t own a gun now because of it.
[quote]Sifu wrote:
jsbrook wrote:
Moriarty wrote:
jsbrook wrote:
Well, it’s a tough line to walk. Obviously there is a compelling interest in preventing the mentally incompetent and paranoid schizophrenics from owning guns. A distant cousin of mind is actually petitioning to get his guns back now. He shouldn’t. He was convinced there was a conspiracy of people out to get him. His family had him committed. He’s out now. But you just KNOW the guy is still not right in the head within a few minutes of talking to him. On the other hand, low-grade depression certainly shouldn’t deny someone their right to bear arms.
How would the federal government even be able to tell that someone is “mentally incompetent” without access to their medical records?
Who defines “mentally incompetent”, the government?
How do you feel about a simple “competence test” being required before voting?
No, there is a trial, and a person is adjudged mentally incompetent by a jury or judge. I believe it’s a jury trial but am not sure. So, it’s not a ‘simple competence test’ at all but an extensive process by which a jury of peers or a judge only finds mental incompetence based upon a pretty compelling showing and pretty egregious evidence of lack of capacity. I would not be particularly bothered in respect with voting. Since I prefer that paranoid and delusional schizophrenics who believe people who are out to get them and who may be subject to hallucinations not have access to deadly weapons, I’d be ok with it in this case too. And there is a presumption of competence. I’m not talking about administering a competency test as a requirement to owning a gun. I’m talking about not giving guns to people who have already been adjudicated mentally incompetent. This is why background checks are necessary. If you’ve been adjudicated incompetent, are a convicted felon, have been institutionalized, etc… it comes up on a background check. You don’t get a gun. If your background is clean, the government doesn’t get to and shouldn’t get to make you jump through hoops and make a showing that you deserve a gun. You simply get your gun.
You are seriously clueless about how the system works. I had a girlfriend who was diagnosed and forced on psychiatric drugs by a “school psychiatrst”, (In Michigan it is a two year degree without medical school) someone who is unqualified to be making psyciatric diagnosis.
When the methamphetamine (ritalin) they fed her made her aggressive the school had her committed and put on the antipsychotic medication depacote.
There was no jury trial or due process her rights were brutally violated. She can’t own a gun now because of it.[/quote]
Sucks for her, buddy. That’s not what I’m talking about. Those are the laws in the state she lives in. That is not what I’m advocating.
[quote]Sifu wrote:
jsbrook wrote:
Moriarty wrote:
jsbrook wrote:
Well, it’s a tough line to walk. Obviously there is a compelling interest in preventing the mentally incompetent and paranoid schizophrenics from owning guns. A distant cousin of mind is actually petitioning to get his guns back now. He shouldn’t. He was convinced there was a conspiracy of people out to get him. His family had him committed. He’s out now. But you just KNOW the guy is still not right in the head within a few minutes of talking to him. On the other hand, low-grade depression certainly shouldn’t deny someone their right to bear arms.
How would the federal government even be able to tell that someone is “mentally incompetent” without access to their medical records?
Who defines “mentally incompetent”, the government?
How do you feel about a simple “competence test” being required before voting?
No, there is a trial, and a person is adjudged mentally incompetent by a jury or judge. I believe it’s a jury trial but am not sure. So, it’s not a ‘simple competence test’ at all but an extensive process by which a jury of peers or a judge only finds mental incompetence based upon a pretty compelling showing and pretty egregious evidence of lack of capacity. I would not be particularly bothered in respect with voting. Since I prefer that paranoid and delusional schizophrenics who believe people who are out to get them and who may be subject to hallucinations not have access to deadly weapons, I’d be ok with it in this case too. And there is a presumption of competence. I’m not talking about administering a competency test as a requirement to owning a gun. I’m talking about not giving guns to people who have already been adjudicated mentally incompetent. This is why background checks are necessary. If you’ve been adjudicated incompetent, are a convicted felon, have been institutionalized, etc… it comes up on a background check. You don’t get a gun. If your background is clean, the government doesn’t get to and shouldn’t get to make you jump through hoops and make a showing that you deserve a gun. You simply get your gun.
You are seriously clueless about how the system works. I had a girlfriend who was diagnosed and forced on psychiatric drugs by a “school psychiatrst”, (In Michigan it is a two year degree without medical school) someone who is unqualified to be making psyciatric diagnosis.
When the methamphetamine (ritalin) they fed her made her aggressive the school had her committed and put on the antipsychotic medication depacote.
There was no jury trial or due process her rights were brutally violated. She can’t own a gun now because of it.[/quote]
For your information, there is a judicial proceeding to be adjudicated LEGALLY incomptent. Don’t pretend that I’m advocating a lesser subjective standard just because that what happens to be what certain states accept.
[quote]jsbrook wrote:
Sifu wrote:
You have alluded but you have not back it up with any credible examples. The reason why you haven’t backed up what you are saying is because you can’t.
I can’t? On the contrary. Regulations that have been upheld limiting fundamental constiutional rights like free speech are in the single digits. Name some laws and regulations in these areas that AREN’T appropriate. Start with just one. Work your way up from there. I am genuinely curiously to see if you come up with anything. [/quote]
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This civil right was reinterpreted during the Clinton administration. The mail is protected from government inspection because it is our papers. Email on the other hand is not protected because it does not use paper, it is electronic.
[quote]jsbrook wrote:
Sifu wrote:
jsbrook wrote:
Moriarty wrote:
jsbrook wrote:
You are seriously clueless about how the system works. I had a girlfriend who was diagnosed and forced on psychiatric drugs by a “school psychiatrst”, (In Michigan it is a two year degree without medical school) someone who is unqualified to be making psyciatric diagnosis.
When the methamphetamine (ritalin) they fed her made her aggressive the school had her committed and put on the antipsychotic medication depacote.
There was no jury trial or due process her rights were brutally violated. She can’t own a gun now because of it.
Sucks for her, buddy. That’s not what I’m talking about. Those are the laws in the state she lives in. That is not what I’m advocating. [/quote]
JS it happened in Michigan, the state you are living in.
[quote]Sifu wrote:
jsbrook wrote:
Sifu wrote:
jsbrook wrote:
Moriarty wrote:
jsbrook wrote:
You are seriously clueless about how the system works. I had a girlfriend who was diagnosed and forced on psychiatric drugs by a “school psychiatrst”, (In Michigan it is a two year degree without medical school) someone who is unqualified to be making psyciatric diagnosis.
When the methamphetamine (ritalin) they fed her made her aggressive the school had her committed and put on the antipsychotic medication depacote.
There was no jury trial or due process her rights were brutally violated. She can’t own a gun now because of it.
Sucks for her, buddy. That’s not what I’m talking about. Those are the laws in the state she lives in. That is not what I’m advocating.
JS it happened in Michigan, the state you are living in.[/quote]
I don’t live in Michigan anymore. But even if I did, that doesn’t mean that I agree with all the laws the State legislature has passed.
[quote]Sifu wrote:
jsbrook wrote:
Sifu wrote:
You have alluded but you have not back it up with any credible examples. The reason why you haven’t backed up what you are saying is because you can’t.
I can’t? On the contrary. Regulations that have been upheld limiting fundamental constiutional rights like free speech are in the single digits. Name some laws and regulations in these areas that AREN’T appropriate. Start with just one. Work your way up from there. I am genuinely curiously to see if you come up with anything.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This civil right was reinterpreted during the Clinton administration. The mail is protected from government inspection because it is our papers. Email on the other hand is not protected because it does not use paper, it is electronic.[/quote]
Ok, you got one. I agree with that. E-mail should have the same protection that letters do. There’s no substantive difference. Anyting else? I doubt that you could name very many.
[quote]jsbrook wrote:
I am almost positive that use of force (deadly or otherwise) is an affirmative defense in every jursidiction, including New Hampshire.[/quote]
Then you would be wrong. Read the NH statute. Justifiable homicide is not a crime, therefore there is no prosecution and no need to plead an affirmative defense. On the other hand, read the Mass statute. Note the difference.
http://www.criminal-law-lawyer-source.com/terms/justifiable.html
[quote]Loose Tool wrote:
jsbrook wrote:
I am almost positive that use of force (deadly or otherwise) is an affirmative defense in every jursidiction, including New Hampshire.
Then you would be wrong. Read the NH statute. Justifiable homicide is not a crime, therefore there is no prosecution and no need to plead an affirmative defense. On the other hand, read the Mass statute. Note the difference.
http://www.criminal-law-lawyer-source.com/terms/justifiable.html
[/quote]
You’re confusing a duty to retreat with affirmative defense. New Hampshire, among other jurisdictions does not require a duty to retreat before using deadly force in self-defense or to prevent a serious crime. Other jursidictions require a duty to retreat and only allow use of deadly force if you can’t safely do so. I promise that you still get prosecuted in jursidictions that don’t require a duty to retreat. Justifiable homicide is not a crime. You are absolved from liability. But you can still be prosecuted and have to show that you reasonably believed use of deadly force was necessary to defend yourself from imminent injury or to prevent a deadly crime. You don’t even have to be right.
Your belief just has to be reasonable. I’m am studying for the Bar right now. I promise you that this is the case. The police don’t just take your word for it. Not anywhere. But you don’t acutally need to know the law for this. You just have to think about it for a second. Can you imagine what would happen if law enforcement took every murderer at their word they they acted in self-defense or to prevent crime? There would be no prosecution. Ever.
Here you go. I capitilized the word defense for emphasis. But this is the text berbatim. The New Hampshire Criminal Code:
TITLE LXII
CRIMINAL CODE
CHAPTER 627
JUSTIFICATION
Section 627:1
627:1 General Rule. �?? Conduct which is justifiable under this chapter constitutes a DEFENSE to any offense. The fact that such conduct is justifiable shall constitute a complete DEFENSE to any action based on such conduct.
Section 627:4
627:4 Physical Force in Defense of a Person. �??
I. A person is justified in using non-deadly force upon another person in order to defend himself or a third person from what he reasonably believes to be the imminent use of unlawful, non-deadly force by such other person, and he may use a degree of such force which he reasonably believes to be necessary for such purpose. However, such force is not justifiable if:
(a) With a purpose to cause physical harm to another person, he provoked the use of unlawful, non-deadly force by such other person; or
(b) He was the initial aggressor, unless after such aggression he withdraws from the encounter and effectively communicates to such other person his intent to do so, but the latter notwithstanding continues the use or threat of unlawful, non-deadly force; or
(c) The force involved was the product of a combat by agreement not authorized by law.
II. A person is justified in using deadly force upon another person when he reasonably believes that such other person:
(a) Is about to use unlawful, deadly force against the actor or a third person;
(b) Is likely to use any unlawful force against a person present while committing or attempting to commit a burglary;
(c) Is committing or about to commit kidnapping or a forcible sex offense; or
(d) Is likely to use any unlawful force in the commission of a felony against the actor within such actor's dwelling or its curtilage.
III. A person is not justified in using deadly force on another to defend himself or a third person from deadly force by the other if he knows that he and the third person can, with complete safety:
(a) Retreat from the encounter, except that he is not required to retreat if he is within his dwelling or its curtilage and was not the initial aggressor; or
(b) Surrender property to a person asserting a claim of right thereto; or
(c) Comply with a demand that he abstain from performing an act which he is not obliged to perform; nor is the use of deadly force justifiable when, with the purpose of causing death or serious bodily harm, the actor has provoked the use of force against himself in the same encounter.
(d) If he is a law enforcement officer or a private person assisting him at his direction and was acting pursuant to RSA 627:5, he need not retreat.
[quote]jsbrook wrote:
Here you go. I capitilized the word defense for emphasis. But this is the text berbatim. The New Hampshire Criminal Code:
TITLE LXII
CRIMINAL CODE
CHAPTER 627
JUSTIFICATION
Section 627:1
627:1 General Rule. �?? Conduct which is justifiable under this chapter constitutes a DEFENSE to any offense. The fact that such conduct is justifiable shall constitute a complete DEFENSE to any action based on such conduct.
Section 627:4
627:4 Physical Force in Defense of a Person. �??
I. A person is justified in using non-deadly force upon another person in order to defend himself or a third person from what he reasonably believes to be the imminent use of unlawful, non-deadly force by such other person, and he may use a degree of such force which he reasonably believes to be necessary for such purpose. However, such force is not justifiable if:
(a) With a purpose to cause physical harm to another person, he provoked the use of unlawful, non-deadly force by such other person; or
(b) He was the initial aggressor, unless after such aggression he withdraws from the encounter and effectively communicates to such other person his intent to do so, but the latter notwithstanding continues the use or threat of unlawful, non-deadly force; or
(c) The force involved was the product of a combat by agreement not authorized by law.
II. A person is justified in using deadly force upon another person when he reasonably believes that such other person:
(a) Is about to use unlawful, deadly force against the actor or a third person;
(b) Is likely to use any unlawful force against a person present while committing or attempting to commit a burglary;
(c) Is committing or about to commit kidnapping or a forcible sex offense; or
(d) Is likely to use any unlawful force in the commission of a felony against the actor within such actor’s dwelling or its curtilage.
III. A person is not justified in using deadly force on another to defend himself or a third person from deadly force by the other if he knows that he and the third person can, with complete safety:
(a) Retreat from the encounter, except that he is not required to retreat if he is within his dwelling or its curtilage and was not the initial aggressor; or
(b) Surrender property to a person asserting a claim of right thereto; or
(c) Comply with a demand that he abstain from performing an act which he is not obliged to perform; nor is the use of deadly force justifiable when, with the purpose of causing death or serious bodily harm, the actor has provoked the use of force against himself in the same encounter.
(d) If he is a law enforcement officer or a private person assisting him at his direction and was acting pursuant to RSA 627:5, he need not retreat. [/quote]
Complete defense, not affirmative defense. Look at the Mass statute and tell me the difference.
If it must be plead as an affirmative defense in NH, then why wasn’t this guy even charged:
http://doj.nh.gov/publications/nreleases/092305shooting.html
[quote]Loose Tool wrote:
jsbrook wrote:
Here you go. I capitilized the word defense for emphasis. But this is the text berbatim. The New Hampshire Criminal Code:
TITLE LXII
CRIMINAL CODE
CHAPTER 627
JUSTIFICATION
Section 627:1
627:1 General Rule. �?? Conduct which is justifiable under this chapter constitutes a DEFENSE to any offense. The fact that such conduct is justifiable shall constitute a complete DEFENSE to any action based on such conduct.
Section 627:4
627:4 Physical Force in Defense of a Person. �??
I. A person is justified in using non-deadly force upon another person in order to defend himself or a third person from what he reasonably believes to be the imminent use of unlawful, non-deadly force by such other person, and he may use a degree of such force which he reasonably believes to be necessary for such purpose. However, such force is not justifiable if:
(a) With a purpose to cause physical harm to another person, he provoked the use of unlawful, non-deadly force by such other person; or
(b) He was the initial aggressor, unless after such aggression he withdraws from the encounter and effectively communicates to such other person his intent to do so, but the latter notwithstanding continues the use or threat of unlawful, non-deadly force; or
(c) The force involved was the product of a combat by agreement not authorized by law.
II. A person is justified in using deadly force upon another person when he reasonably believes that such other person:
(a) Is about to use unlawful, deadly force against the actor or a third person;
(b) Is likely to use any unlawful force against a person present while committing or attempting to commit a burglary;
(c) Is committing or about to commit kidnapping or a forcible sex offense; or
(d) Is likely to use any unlawful force in the commission of a felony against the actor within such actor’s dwelling or its curtilage.
III. A person is not justified in using deadly force on another to defend himself or a third person from deadly force by the other if he knows that he and the third person can, with complete safety:
(a) Retreat from the encounter, except that he is not required to retreat if he is within his dwelling or its curtilage and was not the initial aggressor; or
(b) Surrender property to a person asserting a claim of right thereto; or
(c) Comply with a demand that he abstain from performing an act which he is not obliged to perform; nor is the use of deadly force justifiable when, with the purpose of causing death or serious bodily harm, the actor has provoked the use of force against himself in the same encounter.
(d) If he is a law enforcement officer or a private person assisting him at his direction and was acting pursuant to RSA 627:5, he need not retreat.
Complete defense, not affirmative defense. Look at the Mass statute and tell me the difference.
If it must be plead as an affirmative defense in NH, then why wasn’t this guy even charged:
http://doj.nh.gov/publications/nreleases/092305shooting.html
[/quote]
Because the Attorney General has prosecutorial discretion and felt that he was justified and didn’t charge him. If it DIDN’T think he was justified, it would’ve charged him. It would have to show that use of force wasn’t justified in its case in chief (this is where defense v. affirmative defense comes into play. see below post). If the prosecution makes a satisfactory inital showing, a defendant still can get off by showing justified use of force. It’s not very different than any other state.
The police don’t have to charge you with crime if they don’t believe you are guilty. If they do believe you are guilty, you don’t get off just by proclaining your innocence and justified use of force. Who do you think makes these decisions when they are contested? A jury. Sorry for stating it was an affirmative defense, though. I wasn’t familiar with New Hampshire’s criminal code until I checked. It’s NOT an affirmative defense. Of course, there is still a trial when the issue of justification is contested.
Whether an offense is affirmative or ‘regular’ is a just a procedural or burden of proof issue. You’re right in the sense that justified use of force in New Hampshire negates the element of the crime. But this just means that there is a burden on the government to establish there was no justified use of deadly force in their case and chief. They still go to trial if they think they can prove it and don’t just accept the word of the killer. And if they make a satisfactory showing in their case and chief that someone killed another with no justification, the killer can still present evidence that he was in fact justified.
It is more burdensome on the defendant when it is an affirmative defense. Because the prosecution doesn’t have to show that the murder wasn’t justified. It just has to show that the defendant did it. The defendant then rebuts this with evidence that he did it but was justified. So, harder, yes. But either way, the prosecution will go to trial if it wants. The difference in New Hampshire is that the prosecution must prove that the defendant was NOT justified while in other states the defendant has to show that he WAS.