Before You Quote the Statute...

And if you have the time,sit in a courtroom and LISTEN to what people are charged with and then --------- WHAT THEY ACTUALLY PLEAD TO.

Also note how much is the bail [ out of YOUR pocket ] and how much is an attorney [ again OUT OF YOUR POCKET ].

Then decide if that "stand your ground law" is worth the cost & possible outcome.

Just because you can,does NOT mean you should = as mentioned !!.

Obviously this thread is an attempt to carry on accusing me of wanting to shoot someone over property. I quoted the statute in response to something someone else said and stated at the outset that I was surprised to see what it said, and that personally in such a case I would leave the scene and call 911. As the conversation continued, Jeff pointed out that burglary is not defined by theft but by breaking in. That was an eye-opener for me and probably others, and I feel discussing this was educational.

If other posters quote statutes to bolster their stated opinions, that is a different motivation.

I agree with you about the necessity for a thorough understanding of applicable law. Which was exactly what underlay my initial comment expressing surprise at the plain words of the statutes I quoted.

However, in discussion here it's important to also read carefully what participants write, and not jump on statements out of context. Responding in all caps, boldface, and exclamation marks is not conducive to reasoned discourse.

old lady new shooter said:

I agree with you about the necessity for a thorough understanding of applicable law. Which was exactly what underlay my initial comment expressing surprise at the plain words of the statutes I quoted.

However, in discussion here it's important to also read carefully what participants write, and not jump on statements out of context. Responding in all caps, boldface, and exclamation marks is not conducive to reasoned discourse.

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Whether folks know it or not, THR discussion posts are often high on the list if you do google (bing---duckduckgo etc.) searches on particular topics. I don't think that Kleanbore et al were aiming the posts about the dangers of law directly at you but instead the unseen audience that might read only the black letter statute and conclude self defense is reasonable. Thus, it is wise for the mods to protect THR from someone that uses the site forum results as justification for some unwise action.

For what I do, I deal with statutes, etc. on a daily basis and have a passing familiarity with those I work with with a smattering of constitutional and administrative law. What everyone should understand is that the black letter statute is the starting point of an investigation of what it means. A person seeking to understand Chaucer for example deals with something that looks at times like modern English and other times utter gibberish. Thus, to understand Chaucer at more than a superficial way where someone did something to someone, additional sources such as English history, dictionaries, literary critics, and so on would be used to understand and comprehend the Middle English in Chaucer.

Law is a lot like that and in ways it resembles a poem more than a novel because even one word used in a statute, such as "reasonable" will constitute a dense thicket of its usage in the courts and statutes. For example, Keats famous phrase in his poem Ode to a Grecian Urn, "Beauty is truth, truth beauty" is sparse on words but the concept of both truth and beauty are dense in meaning to others. In a similar vein, someone could easily spend a whole treatise on how explaining how the concept of "reasonableness" permeates the law--both civil and criminal. There are also a lot of submerged concepts lurking in the background of legal history about how someone should act toward others that can be traced often to millenia old Roman law as well as Canon and Mosaic law that judges have found persuasive over the years. Often when the black letter, precedent, and lawyers' arguments do not illuminate how to resolve a particular case, these submerged general concepts are employed to resolve a particular dispute.

Even lawyers and judges are not immune from misunderstanding the law; I would never hire a real estate attorney to conduct a criminal case and most likely vice versa. Even a lot of attorneys practicing criminal law are not well versed in self-defense laws as applied as many merely serve as a conduit to pleading out the case and getting the best terms from the DA.

There is a reason that the mods in the legal areas like Kleanbore, Jeff White, and Frank Ettin get a bit tetchy at times. The inevitable consequence is that someone gets their nose out of joint when they post the statute or the opinion in one court case and argue that is the sum total of what the law means. They get slapped down by the mods because usually the poster did not do the additional research into caselaw, jury instructions, etc. necessary to get what the law likely means in a particular fact pattern. Some take it okay but others then go to plan b. Either attack the moderators via insults or argue that the law should be applied as they desire it to be.

For example, one particular thread that was eminently forgettable started with police action of some sort and then black letter law was brought in by a poster to argue that law enforcement violated the law and that law enforcement officials cannot do anything a citizen cannot do. At some point, the term civilian (as referring to citizens) versus police got thrown around and the argument became over whether police are "civilians" too which had no bearing on the case at hand. Have no desire to revisit that particular THR thread and I refuse to bring it back to life so no citation here. Ideally one should leave a thread more enlightened instead of dumber which occurred in that particular case.

As far as your posts oldladynewshooter, I always find them informative, kind to others, and useful. By your posts, I spent a few minutes looking up Arizona law and noticed caselaw that indicates Arizona is a "code law" state which derogates the position of common law which exists in many states. I also found where my home state's law is much clearer on defense of the home than Arizona's. Thanks.

Starting a response with "NO!", without having given any actual thought or careful reading to the post to which one is responding, does not help anyone. Neither does asking incredulously, something along the lines of "You can't possibly mean that?!" An example that occurred elsewhere here was in a discussion about sitting on one's front porch at night. I said I wouldn't sit on my front porch, if I want to sit outside I have a backyard. One response was along the lines of "Surely you can't believe you are safer in your backyard!", as if my assertion was completely idiotic. I responded by pointing out that many criminals have no impulse control, if they see an "opportunity" they just take it, and cited as an example the case that occurred in my own neighborhood of an old lady who got raped one morning doing laundry in her garage that was visible from the street; finishing up by pointing out that if the backyard is not visible from the street, and better yet is also secured by a locked gate, it is definitely safer than the front porch. The person who belittled my originial statement did not acknowledge that perhaps I had a point, and also did not apologize. I can give more examples.

In the current discussion, a statement explaining how other code sections change the meaning of the ones cited, which some participants did post, and/or offering legal definitions of certain terms that appear to possibly have been misunderstood (like Jeff's explanation about "burglary" not meaning theft), were appropriate and contributed to the understanding of everyone participating seriously. Other posts that rudely jumped all over me instead clearly insinuated that I was supporting the idea of using deadly force to protect property, which I certainly do not. My initial comments stated clearly that I had read the statute in compliance with requirements for a carry permit here, NOT because I was looking for ways to use deadly force to protect property, and that I found the language very surprising. That was an obvious opening for an educational discussion, not an argument.

I'm not going to discuss this any further now.

Mas Ayoob titled his original book on self defense as In the Gravest Extreme which pretty much summarizes my outlook. I also like his concept of weaselcraft which is a separate subject.

boom boom said:

weaselcraft

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What a great expression!!!

I just went googling to find out what "weaselcraft" means, and ended up at a review of one of Ayoob's books, now I want to read it.

Oh, jeez, I was cheering you on right up until you recommended Mas Ayoob...

It's threads such as this that demonstrate how pathetic our patchwork system of laws really is when the ordinary citizens must be reminded that we are not qualified to interpret our statutes and we require attorneys to tell us what the laws really mean. Of course, I have to chuckle sometimes, since I've been to court many times to testify on behalf of the government and seen so much bad lawyering going on …

Is it just me, or is there irony in the fact that so many demand an absolutist interpretation of the Bill of Rights, yet at the same time, readily let the "experts" tell us that we, the people, cannot possibly understand statute and case law.

Two examples of why relying on the black letter of the law doesn't work:

1) In Jim Crow America, if your complexion was "correct", you were never going to be charged with a weapons violation. If your complexion was "wrong", then you were going to have the book thrown at you.

2) Here in New Mexico, prior to the adoption of CCW, if you weren't engaged in otherwise illegal conduct, and if you ever used a concealed weapon to defend yourself in a good shoot, you were never going to be charged with illegal carrying. A jogger in my neighborhood was widely celebrated for putting a bullet in his attacker.

Kleanbore said:

"Absolutist interpretation of the Bill of Rights? It shouldn't take the word of "experts" to explain to us that the opinions of learned judges had to be brought to bear to define just what is meant by "unreasonable search and seizure"--at the very beginning of our Republic.

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Uh, yeah …

Kleanbore said:

That is why where is a Judicial Branch. Things wouldn't work without it.

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Things are working so well with it.

I certainly wasn't arguing any points you or Jeff White were attempting to make, simply posing my own cynical observations after many depressing years going into courtrooms and also teaching use of force/use of deadly force to people who cannot be troubled to remember what they were taught in the academy or from one year to the next in in-service training.

I agree with Kleenbore's opening post, but for completely different reasons than he intended.
Legal documents are not written in a vacuum. Whether your town's local laws or our national Constitution, supporting documentation is there. We know (or can research and discover) what the authors intended and what they didn't.
Then our legal system ignores all that and paints over it with case law rather than original intent. This is most obvious when our founding documents are discussed, but it happens daily at all levels of government with any law you can think of.
So, yeah, the black and white letter of the law is meaningless.

Kleanbore said:

We can look into it, but there will rarely be compete agreement.


Do we really know what the authors intended and what they didn't?

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I like to think that we can figure out what the framers intended. By understanding the Neo-Platonist and Classic backdrop to their thinking, and looking at their own writings, including documents like the Federalist Papers, we can come pretty close. Of course there will always be those gray areas, those situations on the edge, which is the reason behind the existence of our court systems.

The alternate point of view that the language of the Constitution is the property of the legislature and the appropriate government agencies, and that it means whatever they want it to mean in the moment, has little appeal to me. The ultimate ownership of the law rests with the people.

In its best tradition the law is our attempt to find the good, the true, and the real, and when the language fails, we have the right to change it.

But to get at the heart of your question, Kleanbore, do I as an individual believe that my interpretation approaches the infallible? Of course not. I hope I could never be so arrogant, but I do have an opinion. For a man who doesn't, I wonder if the mere act of strapping on a handgun wouldn't already be immoral? The willingness to defend certain lines with deadly force has to be a statement of a moral position.

A few things that people might want to know.

Several rules of thumb:
Statutes (leaving aside a few areas where Scotus (Supreme Court of the United States) has determined otherwise which at this point does not include the 2A) are presumed constitutional. That means that a plaintiff bears the burden of proof to prove that the law is unreasonable on its face or in the specific fact based application of the law.

A facial challenge is that the law is invalid on its face because it contradicts the U.S. Constitution in part or its entirety. However, the court/legislature can sometimes sever the unconstitutional part either by specific language in the statute (legislature) or by a court opining that legislators obviously intended (ironic isn't it) for a section to be severable to save the law from being totally struck down as unconstitutional.

An as applied challenge generally accepts the law's basic constitutionality but argues that it was interpreted incorrectly by the agent of the state or that the law was applied in an unconstitutional fashion in a particular case with that set of case facts (viewpoint discrimination, not narrowly tailored--vagueness, etc.).

Scotus only interprets a federal statute once and they do not revisit that particular law and fact pattern in future cases. Thus, someone challenging the NFA (National Firearms Act) for example will not be able to have the court reinterpret statutory limits on the illegality of a sawed off shotgun (see U.S. v. Miller (1939)). They might address another statutory ambiguity and interpret another section but once they have applied an interpretation to a specific part of the statute, they will not revisit it.

The rationale is that if Congress and the President do not like the court's interpretation, then they can change the law to reflect what they want it to be which is fairly straightforward. Thus, ruling on statutes is different than constitutional law because amending the Constitution is hard so Scotus will revisit its own decisions on constitutional grounds.

In schools of law, law professors, lawyers, and a number of judges have moved away from using "intent" as a interpretative tool for both statutes and constitutions. Non-intentionalists have correctly raised all sorts of problems with trying to determine the collective "intent" of a group of individuals that history has demonstrated through their writings did not agree on specifically what a particular section of a law or constitution meant. We are faced with historical facts such as Madison who drafted the 1st Amendment, and later Thomas Jefferson, who was never a member of the House, had different intentions as to what the Establishment Clause of the 1st meant compared with others in the First Congress that adopted the 1st Amendment. Then, should Madison's intentions that are not in the language of the amendment matter more than the House Committee debate, the floor debate, than the Senate debate, than the private or public sentiments of the other members of the legislature? Does it matter what the debate during states that ratified the amendments determined that the words meant? Even punctuation, definitions, and grammar, which has differed over the years, can make a significant difference in what a statute or constitution means.

For example, Jefferson's letter as U.S. President to a Baptist Church in VA has been cited by the Supreme Court as demonstrating the intent of the Establishment clause was to create a wall of separation between church and state. Historically though, Jefferson was not at the Convention nor attending Congress to vote on the Bill of Rights--at the time he was Washington's Secretary of State. He was President after the 1st Amendment was ratified, so his letter will fail to indicate what the language meant to the representatives and senators and approving the amendment. Intentionalism then often became cherrypicking for suitable historical figures that agreed in the current instance what a phrase meant in the Constitution either in public or in private. Justice Taney did this to very ill effect in Dred Scott for example and more or less grotesquely interpreted the Declaration of Independence as supporting slavery. in the case of Dred Scott.

For example, in Article III, the phrase, "The Judicial Power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish" has been interpreted by the Marshall court to include the power to issue writs of habeas corpus (Ex Parte Bollman and Ex Parte Swartwout (1807) but not writs of mandamus (Marbury v. Madison).

These are in separate sections of the Judiciary Act of 1789 which was held as unconstitutional in Section 13 but similar wording relating to a writ of habeas corpus in Section 14 was held to be constitutional in a later case bringing a stinging dissent from a justice that also served on the court during Marbury. The difference, to the Court, was that Marshall claimed that a writ of habeas corpus was an ancient power of the judiciary but the writ of mandamus was not, and so the judicial power of the U.S. granted original jurisdiction in habeas cases but not mandamus cases. (BTW, the source that Marshall was probably using was Blackstone but Blackstone's history here was incorrect. Both writs existed in earlier forms to around the time of King John--except they were addressed to the king rather than the king's ministers or judges.) This actually spurred a dissent by a justice who joined Marshall's opinion in Marbury but argued that the case of habeas corpus should have reached the same result in Ex Parte Bollman.

As a result, originalists have more or less become adopters of textualism which is how a particular text was commonly interpreted at the time it was adopted. Justice Scalia was a early champion and his specialty in statutory interpretation may have had something to do with that.

Generally speaking, it is almost impossible in a statutory case to know exactly what each member of the legislature voting for the statute intended for the words to mean. Sometimes, a committee or body of the legislature will write a legislative history that provides some guidance but there is no indication that the whole body of the legislature approving the bill would have the same conception of what the words mean or how they will be interpreted in the future. In addition, most legislatures are bicameral which the meaning attached to a bill in one house might not be the same in the other house.

As a result, Scalia argues that on a bill, we have two facts--that the bill passed with a certain text identical between houses, and the text of the bill itself. Thus, a textualist would focus on what did the words mean in common usage in public and in the legislature at the time. Not what the sponsor intended, not what the committee chair intended, not what the Parliamentarian intended, as no vote was taken on these understandings, only the text itself can be said to have been voted upon.

Those who were pragmatists/realist can be summarized pithily by retired Judge Richard Posner. He said, "What am I, a Potted Plant?" when writing an article about judicial interpretation. He argued for broad discretion for judges to be able to rewrite the laws (and the Constitution for that matter where it is not obvious) according to a judge's best reasoning on what they should mean. Non-intentionalists have a variety of different methods to give meaning to texts--some adhere to critical theory, others to grant judges discretion to use their own values and judgment in what the words should mean, some argue that judges should take into account the spirit of what the law was designed to do, and so forth. Each approach has demonstrable issues of their own--either unfettered judicial power to rewrite statutes which violates the separation of powers doctrine, interpreting them differently depending on suspect/non-suspect classifications of plaintiffs which introduces equal protection of the law problems or due process problems, determining the spirit of the laws is akin to intentionalism in that the judge embarks on a mission of discovery with no fixed guides, and so on.

This is a simple summary of a very complicated debate; but needless to say, this debate has considerable consequences on individuals facing criminal or civil penalties for violating some law.

Want a good summary of how Justices look at the law--Read Scalia's A Matter of Interpretation for the short argument why textualism is what he preferred to use. His Reading Law: The Interpretation of Legal Texts, by Justice Scalia and Bryan Garner is a more in-depth examination of the topic and it gets into the nitty-gritty of how a judge will interpret the law in a specific case with specific facts. In fact, Scalia will actually criticized some of his own opinions on a textualism basis but his defense is stare decisis in that the mistake in interpretation by Scotus had already been made before he wrote his opinion.

This is why you hire the best lawyer that you can spend your money on and the best thing is to avoid the whole mess by avoiding being a test case in the first place. Whatever occurs in court, YOUR specific interpretation of the law bears little to no bearing on what the judge, jury, and appellate courts will follow.