Monday, July 07, 2008

Obsoleting the Second Amendment

I found this at the Volokh Conspiracy, they discuss legal stuff around it, but I think the writer of this article is completely clueless when attaching his descriptions of non-lethal defense mechanisms to the problems of self-defense.
The states impose carefully defined limitations on the use of deadly force in self-defense. (These rules are fairly uniform, state to state; most are based on the American Law Institute’s Model Penal Code of 1962.) A person may use only as much force as is “immediately necessary.” If a less lethal means of defense is available, the use of deadly force is illegal. Firearms are by law deadly force. (The police are given somewhat greater authority to use force, even aggressive force.)

Guns have been considered a primary weapon for self-defense. But now there are nonlethal alternatives — some not yet on the market — that can quickly disable an attacker even more reliably than a firearm can.

The best known of these are Tasers, handgun-shaped devices that fire a dart that delivers a painful electrical shock. A hit from a Taser causes an instant muscular spasm that can disable any attacker, no matter how determined. And the Taser works no matter where on the attacker’s body the dart hits. A bullet, in contrast, instantly disables only if it hits a couple of vulnerable spots, like the space between the eyes. A shot to the arm, the leg or even the torso may not stop an attacker.

First, it would have been nice if he had thought to discuss what "immediately necessary" means to the person being attacked. Being assailed in your home by an unknown entity with unknown intentions in an extremely short time span doesn't give one a lot of time to analyze what is reasonable or necessary. It also leaves other issues in the unknown which he completely ignores, such as is there a second assailant on the premise.

Which leads me to the next point of how very useless the taser is against multiple attackers. Especially if they have a gun. Yep, you tased the first scum bag, now the second is shooting at you. That taser is now worthless. But sure, we should have laws that leave you as the weakest in such a conflict. Makes sense when you lobotomize yourself and follow this guys logic.
Newer kinds of hand-held weapons that are less lethal than guns — many already in prototype — may be even more effective than Tasers. These include light lasers, designed to blind temporarily, and microwave beams that instantly cause the skin to feel as if it is on fire, but cause no lasting harm.

Of course, anyone who uses a gun in self-defense may argue that he would have used a less lethal weapon if he had had one at hand, but there was only the firearm. The problem with this argument is that the limited option is the person’s choice, and the law may not be blind to that choice

Another limited thought game. I'm sure those less than lethals will never have anyone figuring out a way to counter them. Never happens in any other contexts. Hackers never have figured how to get by firewalls (trojans, viruses etc.) The military has never had to obsolete weapons because some one has figured out a way to defeat them or get around them now have they?

If you are a surgeon and you leave your glasses behind on the way to the operating room, then botch a delicate procedure, you can’t convince a judge that the resulting death wasn’t your fault because you couldn’t see well. If, on your way to confront an intruder, you choose your gun rather than your more effective but less lethal weapon, you can hardly complain later about your limited options.

Incredibly poor analogy. Surgeons aren't awoken in the middle of the night with their life threatened in order to perform surgery. This is an argument so close to blaming the victim for the attack that its pathetic. If I'm attacked, why should I have to be the one showing extreme caution. I'm not acting illegally or seeking to harm anyone intentionally. I'm trying to protect my life and that of my family. If you have chosen to violate my rights you have chosen to lose yours.
Similarly, when a person shops for a weapon of self-defense, anticipating some day a confrontation with an attacker, his choice of a gun over something less lethal but more effective is a choice to limit his options in a confrontation.

Should we worry that by expecting people to use only nonlethal weapons in self-defense we would sacrifice our personal autonomy and safety? No. On the contrary, personal autonomy would be even more vigilantly protected.

I love the whole logic that the killer or thief has some right to life above your own. How is it that the victim has to respect the assailants rights over their own? I also would love to see his logic that these less-than-lethal weapons are more effective. I'm betting that someone racking their shotgun is more likely to have a non-lethal interaction with an assailant than their fingering their taser. And how exactly is personal autonomy more vigilantly protected? I don't see any justification of the point.

But I'll say where he's wrong, he misses the point that he assumes that all these non-lethals will cover all of the various scenarios that a person may be put into and he also assumes that a gun can't cover them all and do so more effectively. That is not a set of assumptions I wish to risk my life with.
The reason for this is a second limitation on the use of defensive force, what might be called the “proportionality” requirement. Typically, a defender can lawfully use deadly force only to prevent death, rape, kidnapping or bodily injury serious enough to cause long-term loss or impairment of a body part or organ. But a nondeadly weapon can be used to defend against any threat of unlawful force.
I always love the "proportionality" requirement. Generally a useless bit of logic in a situation where you are the one being attacked by an unknown assailant for unknown reasons. Makes you wonder what this dolt thinks is reasonable. Someone has broken into your home and you have to figure out if he's there to rape or kill or kidnap you. I wonder how he would determine such a thing? And since he never addressed any of the problems of the non-lethal defenses or the ability of the assailant to avoid such devices, how can he say that a gun isn't appropriate?

The writer also seems to avoid some very interesting trends away from his logic being enacted in states across the country. Even the most liberal states have decided that the extreme retreat requirements are not logical. The castle doctrines being further enacted in more and more states are reactions to such poor logic as this guy applies to what is reasonable for the defender.

This article's logic may be sufficient for those who have lots of money and live in nice places, but it completely ignores the realities of most of peoples lives.




1 comment:

Ethan said...

Very Nice man
Looks like you've got all your bases covered