#10: Crime & Punishment

Table of Contents:

Crime—Punishment—Due Process of Law—The Second Amendment
Arizona Law—Justification Defenses in Homicide Cases
The Second Amendment to the Constitution of the United States
The Second Amendment & Self-Defense Laws
The Second Amendment & the United States Supreme Court
Debating the Second Amendment—Arguing Gun Rights

Crime—Punishment—Due Process of Law—The Second Amendment

A crime must be punished in a particular way—under due process of law. Otherwise it is a scourge and harms every citizen. The Fifth Amendment guarantees, “. . . Nor shall any person be subject for the same offense 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, without due process of law.”[1]


Homicide is the unlawful killing of another human. It is an intentional act. You can accidentally kill another human, but that’s not homicide. Homicide is intentional. Murder is intentional. It comes in two degrees: first-degree is premeditated homicide; second-degree murder is not premeditated, but results from an assault in which death of the victim was a distinct possibility. Manslaughter is also an intentional crime. The federal government and every state classifies homicide and extracts legal consequences. The available defenses vary based on the nature of the crime. They vary depending on where the murder occurred. Tragically, they also vary widely based on the liberal/conservative politics of the state where the homicide occurred.

America recognizes at least six defenses in homicide cases. Insanity—it can mitigate intent. Automatism—muscle contraction lacking mind control or lack of consciousness. Intoxication—may negate specific intent, a particular kind of mens rea applicable only to some crimes. Mistake of fact—used in conjunction with another defense, where the mistake led the defendant to believe his actions were justifiable. Duress—forced into an unlawful act. Necessity—a criminal act can be justifiable if necessary to prevent a foreseeable and greater harm. Necessity is the legal basis for self-defense.

Stand Your Ground shooters have only one defense—a mighty one for sure—especially if pled in a politically conservative state. They are sane, sober, know exactly what they are doing, and are not acting under duress. But none of that matters. They have an ace in the hole—the bullet hole. They have the everlasting defense of necessity. They defend by arguing they shot only because it was necessary to prevent a foreseeable and greater harm—to themselves.

SYG shooters couch necessity in self-defense terms, usually from the moment they are arrested to the day they either win in court or cop a lesser plea. It was necessary they say. They did it in defense of self, they say. And most, if not all SYG shooters are well-trained shooters and adopt the thesis wildly supported in conservative circles, and the gun culture.

Arizona Law—Justification Defenses in Homicide Cases

The best way to understand current legal structure is from a historical perspective. Examine the present by looking at how it changed over time. Arizona has recognized self-defense in murder cases since statehood. Arizona case law, as far back as 1923, recognized the phrase “stand your ground” in the context of jury instructions in self-defense cases. The 21st Century SYG is a catchy phrase and part of a conservative effort to aid and abet the gun industry and give gunmen a stronger justification argument in questionable cases.

In 1963, the Arizona Supreme Court handed down a case resolving how “reasonableness” is tested in cases where homicide was justified as self-defense—State of Arizona v. E.D. Eddington.[2] It is the first case in Arizona to use the now vaunted phrase—stand your ground. Mr. Eddington shot a man in the head. He said the man had pulled a knife on him. The trial jury convicted him of assault with a deadly weapon. On appeal, Eddington argued that the jury instruction on self-defense given by the trial judge was erroneous. The Supreme Court approved the jury instruction because it applied the “reasonable man” test. The court explained, “The apprehension of danger must have been such as would have incited the fears of a reasonable person. The question to be ultimately determined by the jury is whether defendant reasonably believed he was in personal danger and whether he used no more force than ‘necessary’ to defend himself. Actual danger is not necessary to justify self-defense but only that there be danger as viewed through the eyes of a reasonable man in the defendant’s situation.”[3]

In affirming the trial court’s jury verdict, the court quoted the instruction given by the judge. “One of the defenses asserted by the defendant is that under the circumstances in this case, the defendant acted in self-defense and that, therefore, defendant is not guilty. It is lawful for a person who is being assaulted, and who has reasonable grounds for believing that great bodily injury is about to be inflicted upon him to stand his ground and defend himself from such attack, and in so doing, he may use all force and means which he believes to be reasonably necessary and which would appear to a reasonable person in the same or similar circumstances to be necessary to prevent the injury which appears to be imminent. If you find the defendant herein so acted in this case, you may find him not guilty of the charge, that is, of the charge of assault with a deadly weapon. If the evidence in this case raises a reasonable doubt in your minds on whether the defendant acted in self-defense, then the State has not maintained its burden of proof and the defendant cannot be convicted.”[4]

The Second Amendment to the Constitution of the United States

Every book, column, essay or report about homicide, the intentional use of a firearm to shoot a human, and due process of law must include a basic understanding of the Second Amendment. A simplistic Google search will garner at least 205,000,000 hits.[5] The Second Amendment was not cited, argued, or directly relevant to the charges against Steven Jones, or his defense. However, the mere shadow of the Second Amendment hovers over every case of gun violence, gun safety, and gun ownership. Jurors in every case have varied views about the Second Amendment. Those views cannot be ferreted out in voir dire—it’s not supposed to be an issue. The lawyers never know which juror might hold to a common distortion of the Second Amendment—“Hell, why do we even have the Second Amendment if we can’t use our guns to defend ourselves?”

The text of the Second Amendment to the US Constitution is a single sentence. It has twenty-seven words. They are awkwardly phrased, highly debatable, routinely misread, and highly litigious. “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Appropriately, it is written in passive voice with the action verb coming only at the end.

The framers of the Bill of Rights adapted the wording of the amendment from nearly identical clauses in some of the original thirteen state constitutions.[6] That is not the case in Arizona. Our “right to bear arms” is written in active voice, with greater clarity, and less problematic reasoning. It does not focus on a “well-regulated Militia.” It is focused on Arizonans. It actually includes the magic words—in defense of himself. Sexist, yes, but that was the norm a hundred years ago. Our version is Article II, § 26 of the Arizona Constitution: “The right of the individual citizen to bear arms in defense of himself or the State shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of men.”

Arizona, like most states, passed enabling statutes to bring constitutional law down from high pinnacles to courtrooms. A.R.S. § 12-714 states that the legislature has found that “[t]he citizens of this state have the right, under. . . Article II, § 26 of the Arizona Constitution, to keep and bear arms.”

What the statute means, its original intent, and current applicability, is a metaphor for today’s gun culture. As one Arizona legal historian put it, “Nobody really wants the Second Amendment.”[7] Bob McWhirter explains, “On the one hand are the gun controlists, armed with violence statistics who say it is all about ‘a well-regulated Militia.’ We must regulate guns, they argue because some guns are so simple even a child can use them. They ignore, or at least find inconvenient, the part that says ‘the right of the people to keep and bear arms shall not be infringed.’”

“On the other hand,” he argues, “are the individual rightists, who say ‘it’s all about the right of the People to keep and bear arms’ and ‘that militia stuff is just what we call our gun clubs.” McWhirter explains at length what he calls the “self-defense myth.”[8] “Although one could argue the modern right to use a gun in self-defense is part of the right to privacy, the Second Amendment does not support this argument.”[9] The framers of the Second Amendment would not have thought guns as providing an individual right, rather than a collective right, of self-defense.

The Second Amendment & Self-Defense Laws

Owing and possessing guns is legal in America. Using a gun in self-defense is constitutionally recognized. The former is a matter of constitutional law, the latter the correct application of applying criminal law. Connecting ownership of a gun to using that gun to defend yourself and get away with first-degree murder is why we have courts. There is a place for reasonable legislative regulation of bearing arms. It explains how Jones had the right to carry his gun from his car to what became his killing field ninety feet away. What must also be explained is whether Jones was legally justified in using deadly force, with his Glock, as a matter of self-defense. “The low scrutiny applied by the Arizona Court of Appeals in situations squarely within the self-defense purpose of the guarantee should be corrected by the Arizona Supreme Court by applying the heightened scrutiny applicable to all other explicitly guaranteed rights.”[10]

The Second Amendment & the United States Supreme Court

Unfortunately, American media rarely gets down into the legal weeds when reporting US Supreme Court Second Amendment cases. There are scores of cases resolving hundreds of issues surrounding the meaning, breadth, and usefulness of our vaunted Second Amendment. For my people—lawyers—the lack of media focus on the core principles is of little moment. The issues we care about are exhaustively assessed, argued, digested, and debated in law review arguments, Continuing Legal Education seminars, faculty forums, and symposiums. In many venues, the discussions and debates evolve from the essence of SCOTUS litigation about constitutional rights and interpretation.

That discussion has a consistent starting point. For every right there is a correlative duty. That every legally enforceable right relies on a corresponding legal duty is a foundational, time-honored principle. Oliver Wendell Holmes[11] and Wesley Hohfeld[12] presented and debated the point a century ago. “The interdependence of rights and duties is a legal constant as inescapable as a basic arithmetic equation—if there is a legal right, there must be a legal duty associated with it. But as contemporary legal scholars have also recognized, in the modern legal context, duties are often an afterthought in legal analyses, or absent altogether. It is quite true that the fundamental relationship between rights and duties is always implied—so embedded within the law that there is generally little need to remind ourselves of the basic legal fact. Nevertheless, jurists who neglect to account for this necessary piece of the legal equation do so to the detriment of their conclusions.”[13]

Any modern day assessment of either the core principle (for every right there is a correlative duty) or the ongoing battle of competing political ideologies, must take into account what is today the seminal Second Amendment case—District of Columbia v. Heller.[14]

In Heller, SCOTUS struck down provisions of the Firearms Control Regulations Act of 1975 as unconstitutional. Heller was the first Supreme Court opinion in seventy years to assess the Second Amendment’s intent and application to gun ownership by private citizens; the original goal—maintaining a well-regulated Militia was yesteryear’s thinking. The question in Heller was straightforward: did Dick Heller have a constitutional right to have a handgun in his home. The court ruled in his favor, affirming an individual right to keep handguns in the home for self-defense. In its decision, authored by Justice Antonin Scalia, the Supreme Court was careful to stress the limited nature of its ruling. Writing for the majority, Justice Antonin Scalia noted, “Like most rights, the right secured by the Second Amendment is not unlimited. [It is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”[15]

Unfortunately, “the various modes of constitutional interpretation employed in Heller neglect to consider the historical meaning of the text in terms of the commensurate responsibilities an individual rights holder is expected to assume as a member of the broader society by virtue of exercising that right. [Consequently] the result of focusing heavily on the ‘rights’ half of the legal equation has been that many participants in these debates have neglected to consider explicitly the nature of the duties and burdens any Second Amendment decision—whether it is permissive or restrictive—places on the society at large.”[16]

Professor Roberts notes in his law review article that the Heller decision, “Advances a fictive kind of individualism that removes the rights claimant from the very social and legal context within which he exists. As a result, the question of Second Amendment rights has so often assumed an ideological foundation rather than a legal one before the parties even have their day in court. The issue of gun rights has become a zero-sum contest; any perceived gain on one side necessarily infringes on the perceived rights of the other. The pressing question is how do we approach this issue on legal, rather than ideological, foundations.”[17]

Debating the Second Amendment—Arguing Gun Rights

Notwithstanding the dearth of cases interrupting the Second Amendment, there has never been a shortage of opinions about what it means, says, or doesn’t say, doesn’t mean, and will save us from damnation, or condemn us to it. Robert Quillen famously said, “Discussion is an exchange of knowledge, argument an exchange of ignorance.”[18] The debate has been going on for at least 200 years. Much of the debate centers on changing circumstances, claims, and exigencies. In the Civil War era in the South, the notorious Black Codes eviscerated the rights of former slaves by limiting their rights to firearm possession.[19] Not long after the assassinations of JFK, his brother Robert, and Martin Luther King Jr., Congress passed the Gun Control Act of 1968. That act placed serious restrictions on the ownership, sale and transfer of firearms.[20]

In the twenty-first century, legislatures, courts, gun owners, gun victims, gun sellers, and gun advocates across the country have debated, cussed, discussed, and bellyached about background checks, waiting periods, gun registration, prohibited class of purchasers, and ammunition restriction. While those arguments fascinated some, the more important debate swirled around a narrow topic. Does the Second Amendment preserve an individual right or does it refer those rights to a state-regulated militia. The Heller case put an end to that swirl by this exact language: “The Second Amendment protects an individual right to possess a firearm unconnected to service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”[21]

Debates and contrary views aside, the “legally enforceable right to bear arms” cannot be used or denied in a vacuum. It always requires the rights of other parties to be realized. This happens when the debate is no longer esoteric. When one person shoots another person with a gun, the comparable rights of each are at legal issue. The shooter may claim a Second Amendment right to self-defense. The victim may claim a fundamental right not to be shot. The right of the shooter cannot be and is not superior to the right of the victim. That is why Oliver Wendell Holmes argued, “legal duties are logically antecedent to legal rights. . . Legal duties then come before legal rights.”[22] The right to own a gun is antecedent to the right to use it. The shooter’s rights are antecedent to the victim’s rights. The word “antecedent” means a thing or event that existed before or logically precedes another.

The word “right” is used in law, courts, legislatures, and lecture halls to describe the implied relationship between duty and right holder. Their relationship define the right. As Professor Roberts clarified, this is a crucial point when examining a particular case, as opposed to a high-level discussion of constitutionality. “The claims of a pre-political, natural right to bear arms is inherited by virtue of one’s civic ancestry, the fundamental laws of nature, or one’s attributes, for example, do nothing to define the terms of the enforceable right.”[23]

[1] Fifth Amendment to the United States Constitution (1791). https://www.constituteproject.org/constitution/United_States_of_America_1992

[2] 95 Ariz. 10, 386 P.2d 20 (1963).

[3] Ibid. at 22, citing a 1923 case—Caston v. State, 24 Ariz. 593, 211 P. 866.

[4] Ibid. at 4.

[5] Author Google search—Retrieved August 22, 2020. https://www.google.com/search?q=Second+Amendment.

[6] https://www.history.com/topics/united-states-constitution/2nd-amendment.

[7] Robert J. McWhirter, “Bills, Quills and Stills—An Annotated, Illustrated, and Illuminated History of the Bill of Rights.” American Bar Association Publishing, 2015, Chicago, at 116-117.

[8] Ibid. at 150-151.

[9] Ibid. at 151, n3. “The NRA and any number of gun enthusiasts argue that the Second Amendment protects the right to have a gun for ‘self-defense.’” See, e.g. Brief for the NRA, supporting Respondent, District of Columbia v. Heller, 128 S. Ct. 2783 (2008) (No. 07-290).

[10] 3 Ariz. St. L. J. 341. Comment, “Some Explicitly Guaranteed Rights are More Fundamental than Others—The Right to Bear Arms in Arizona.” Jerod E. Tufte. Mr. Tufte, a graduate of the Sandra Day O’Connor College of Law, is a Justice of the Supreme Court of the State of North Dakota.

[11] “Oliver Wendell Holmes Jr. (March 8, 1841–March 6, 1935) was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932 and as Acting Chief Justice of the United States in January–February 1930. Noted for his long service, concise and pithy opinions, and deference to the decisions of elected legislatures, he is one of the most widely cited United States Supreme Court justices in history, particularly for his ‘clear and present danger’ opinion for a unanimous Court in the 1919 case of Schenck v. United States, and is one of the most influential American common law judges, honored during his lifetime in Great Britain as well as the United States. Holmes retired from the court at the age of 90, making him the oldest justice in the Supreme Court’s history. He also served as an Associate Justice and as Chief Justice of the Massachusetts Supreme Judicial Court, and was Weld Professor of Law at his alma mater, Harvard Law School.” https://en.wikipedia.org/wiki/Oliver_Wendell_Holmes_Jr.

[12] “Wesley Newcomb Hohfeld (9 August 1879, Oakland, California—21 October 1918, Alameda, California) was an American jurist. He was the author of the seminal Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays (1919). During his life he published only a handful of law journal articles. After his death the material forming the basis of Fundamental Legal Conceptions was derived from two articles in the Yale Law Journal (1913) and (1917) that had been partially revised with a view to publication. Editorial work was undertaken to complete the revisions and the book was published with the inclusion of the manuscript notes that Hohfeld had left, plus seven other essays.” https://en.wikipedia.org/wiki/Wesley_Newcomb_Hohfeld.

[13] Christopher N.J. Roberts, Associate Professor, University of Minnesota Law School. “Standing Our Legal Ground: Reclaiming the Duties Within Second Amendment Cases. 47 Ariz. St. L. J. 235 (Spring 2015) at page 237.

[14] 554 U.S. 570 (2008).

[15] https://lawcenter.giffords.org/gun-laws/the-second-amendment/the-supreme-court-the-second-amendment/.

[16] Christopher N.J. Roberts, 47 Ariz. St. L. J. 235 (Spring 2015) at page 238.

[17] Ibid. at 238-239.

[18] Quote = https://www.wiseoldsayings.com/argument-quotes/#ixzz6RWGn7rI4 “Verni Robert Quillen (March 25, 1887–December 9, 1948) was an American journalist and humorist who for more than a quarter century was “one of the leading purveyors of village nostalgia” from his home in Fountain Inn, South Carolina. In 2012, his office and library was listed on the National Register of Historic Places.” https://en.wikipedia.org/wiki/Robert_Quillen.

[19] Megan Ruebsamen, Note, The Gun-Shy Commonwealth: Self-Defense and Concealed Carry in Post-Heller Massachusetts, 18 Suffolk J. Trial & App Advoc. 55, 63-64 (2013).

[20] Robert A. Bracken, Foreign Convictions Are Not Proper Predicated Offenses Under the Statutory Language “Convicted in Any Court.” Small v. United States, 44 Duq. L. Rev. 383, 390-391; See also 18 U.S.C. & 922(A) (1) (2012).

[21] Heller, 554 U.S. at 577. See also, Christopher N.J. Roberts, 47 Ariz. St. L. J. 235 (Spring 2015) at 241.

[22] Oliver Wendell Holmes, Jr., The Common Law, (1881) at 219-20. 23 Yale L.J. 16 (1913), at 30-32.

[23] Christopher N.J. Roberts, 47 Ariz. St. L. J. 235 (Spring 2015) at page 253.

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