Wikipedia:Reference desk/Archives/Humanities/2019 August 4

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August 4

Right to arms and extrajudicial killing

Have US courts and/or legal experts considered whether the right to keep and bear arms under Second Amendment trumps the issue of lynching-styled extrajudicial killing (or whether the two issues conflict with each other)? 212.180.235.46 (talk) 16:50, 4 August 2019 (UTC)

What has the Second Amendment got to do with lynchings? ←Baseball Bugs ^{What's up, Doc?} carrots→ 19:43, 4 August 2019 (UTC)

The sheer tonnage of bulsh*tty "thought" produced nowadays by "experts" make it almost certain that someone got published, say, that Second Amendment is the right to lynch. Gem fr (talk) 21:22, 4 August 2019 (UTC)

Ropes constitute "arms"? ←Baseball Bugs ^{What's up, Doc?} carrots→ 23:58, 4 August 2019 (UTC)

Lynching in the United States doesn't even mention the 2nd. And I see no reason why it should.

OTOH one interesting instance of "lynch" in https://en.wikipedia.org/wiki/Talk%3ASecond_Amendment_to_the_United_States_Constitution%2FArchive_1

Gem fr (talk) 21:04, 4 August 2019 (UTC)

That point being that if you have a gun, you might be less likely to get lynched. So of course the Second Amendment "trumps" extrajudicial killing. I'm trying to imagine how that could even come up in a court case. Would the prospective lynching party complain that a guy used a gun to defend himself? ←Baseball Bugs ^{What's up, Doc?} carrots→ 21:20, 4 August 2019 (UTC)

In any case, the right to bear arms does exist, while the right to lynch doesn't, so much so that it is even a crime. So the matter, if brought to court, would be as simple as legal matter can be (but, who knows... ) Gem fr (talk) 21:27, 4 August 2019 (UTC)

• Short answer: They absolutely have. The answer generally is that, while the right to bear arms is expressly and explicitly mentioned in the Constitution, specific crimes like extrajudicial killings are not mentioned expressly and explicitly in the Constitution. In other words, there are no baked-in federal protections against extrajudicial killings specifically. The federal government is probably free to prohibit such killings (insofar as they affect interstate commerce), but they could not use the threat of extrajudicial killings to curtail the right to bear arms any more than they could any other justification. In other words, if a specific law were to unconstitutionally infringe on the right to bear arms, the fact that the justification for that law stems from a desire to curtail extrajudicial killings would make no difference. Similarly, if a specific law constitutionally impacted the right to bear arms, substituting a different justification for a desire to prevent extrajudicial killings would not render it unconstitutional. —/Mendaliv/^2¢/_Δ's/ 00:05, 5 August 2019 (UTC)
  • No one can be deprived of life, liberty or property without due process of law. Extrajudicial killing is, by definition, not due process of law. ←Baseball Bugs ^{What's up, Doc?} carrots→ 00:10, 5 August 2019 (UTC)
    • No one can face such a deprivation by the government. Extrajudicial killings in the United States are more often carried out by private individuals than the government. However, to the extent a law were made to regulate governmental usage of arms so as to protect individuals from deprivations of life, liberty, or property without due process of law, then such law probably would survive a second amendment challenge by the government. —/Mendaliv/^2¢/_Δ's/ 00:13, 5 August 2019 (UTC)
      • Murder is illegal everywhere in America. How is a lynching not murder? ←Baseball Bugs ^{What's up, Doc?} carrots→ 00:32, 5 August 2019 (UTC)
        • It's illegal everywhere (mostly under state law, but also under federal law in some unusual circumstances). But the reason it's illegal isn't because of the due process clause. It's illegal either because of carry-over from English common law or (I think in all jurisdictions now) because there's a statute making it illegal. —/Mendaliv/^2¢/_Δ's/ 00:37, 5 August 2019 (UTC)
          • Either way, it's illegal. And even if you were to count a rope as an "arm", it is illegal to used "arms" to commit murder. ←Baseball Bugs ^{What's up, Doc?} carrots→ 02:21, 5 August 2019 (UTC)
            • Either way, it's illegal. That's not the point though. The point is that there is no constitutional protection against extrajudicial killing such that there would need to be a harmonization with the Second Amendment. To repeat what I said above: If a specific law were to unconstitutionally infringe on the right to bear arms, the fact that the justification for that law stems from a desire to curtail extrajudicial killings would make no difference. Similarly, if a specific law constitutionally impacted the right to bear arms, substituting a different justification for a desire to prevent extrajudicial killings would not render it unconstitutional. Not all things that are illegal have a constitutional dimension to their illegality. Murder at least lacks a clear constitutional dimension. I would argue that there might be a substantive due process argument that a state must have a law prohibiting the unlawful killing of another under certain circumstances, and within that there may be a constitutional minimum to the conduct that must be prohibited. But that wouldn't rise to the level of justifying what would otherwise be an unconstitutional curtailment of second amendment rights.
              And even if you were to count a rope as an "arm", it is illegal to used "arms" to commit murder. Well no, it's illegal to commit murder, no matter how you commit it. In some jurisdictions there may be an enhancement for using a weapon to do it, or a separate crime of unlawful use of a firearm or use of a firearm in the commission of a felony that would be charged alongside the murder. Anyway, I took OP's use of "lynching" as a general reference to extrajudicial killings, which need not be the stereotypical rope thrown over a tree limb. —/Mendaliv/^2¢/_Δ's/ 02:42, 5 August 2019 (UTC)
              • I mean that while you have the right to keep and bear arms, however "arms" are defined, using those arms to commit murder (or any other crime) is illegal, i.e. is not protected by the 2nd Amendment. ←Baseball Bugs ^{What's up, Doc?} carrots→ 04:17, 5 August 2019 (UTC)
                • The statement repeated by Baseball Bugs seems so uncontroversial that it is hard to see why Mendaliv demurs "Well no,.." but possibly means "Well yes,..". DroneB (talk) 17:46, 5 August 2019 (UTC)
                  • Mendaliv's point seems to be that the murder itself is the crime, not the means by which the murder is accomplished. That is true, as far as I know, and can be distinguished from cases in which the means by which a crime is accomplished is a separate offense in itself. It's a fine point, and tricky to express in a way that won't be misread. --Trovatore (talk) 18:10, 5 August 2019 (UTC)
                    • Quite. The ending of the life of another without legal justification is the prohibited act. Using arms to achieve that (versus a rock, drowning, poison, a pillow, etc.) is more often a matter of aggravation or degree than the principal act prohibited. To use the formulation favored by G. Robert Blakey, in a law which prohibits killing another by using firearms, the “using firearms” would be described as surrounding circumstances rather than conduct or result. —/Mendaliv/^2¢/_Δ's/ 19:11, 5 August 2019 (UTC)
• I'm failing to follow the non-sequitur introduced by the OP. Killing a person outside of legal means is usually manslaughter or murder, and is entirely unrelated to someone's right to own a gun. I don't see where the right to own a gun does or does not affect the legality of murder. --Jayron32 18:14, 5 August 2019 (UTC)

Killing a person outside of legal means is related to someone's right to own a gun in 2 obvious ways:

• a motive: "how dare you claim a right to bear arm, as if you were a citizen, you negro? we KKK hang you for this"
• a deterrent: "I am all in for lynching the man, except he has a gun and ready to defend his life"

neither affect the illegality of lynching, of course Gem fr (talk) 18:49, 5 August 2019 (UTC)

Still, in your first case you've committed murder. If you murder someone for other reasons than the reason you gave you've also committed murder. Courts also don't decide such things as deterrence. It isn't their place. Their place is to decide whether you've committed murder. Your right (or not) to own a gun is unrelated to that. There's no possible way where the mere right to own an object (or not, as it were) would enter into whether or not you killed a person illegally. --Jayron32 19:02, 5 August 2019 (UTC)

Courts also don't decide such things as deterrence. It isn't their place. Their place is to decide whether you've committed murder. Point of clarification: In determining the penalty, factors such as deterrence may indeed be relevant. —/Mendaliv/^2¢/_Δ's/ 19:13, 5 August 2019 (UTC)

Sentencing guidelines come from the legislative branch, not the court system. ←Baseball Bugs ^{What's up, Doc?} carrots→ 23:31, 5 August 2019 (UTC)

ever heard about case law / precedent? Gem fr (talk) 01:56, 6 August 2019 (UTC)

The sentencing guidelines aren't binding (see United States v. Booker and Blakely v. Washington). The court (and jury, if a jury is involved in the sentencing phase) has significant discretion as to the sentence for a particular crime. And that's where they consider a variety of factors, including the need for punishment resulting from the evil the crime caused, the deterrence effect of the penalty, the rehabilitation potential of the person being sentenced, and the need to remove that person from society in order to protect society. I would recommend taking a look at Wayne LaFave's Substantive Criminal Law for more information on the justifications for criminalization and penalization and their philosophical underpinnings. —/Mendaliv/^2¢/_Δ's/ 03:49, 6 August 2019 (UTC)

If you look at the other "contributions" from the OP, it becomes likely that this one post was intended to generate debate. ←Baseball Bugs ^{What's up, Doc?} carrots→ 01:20, 6 August 2019 (UTC)

For a short period in the 1950s, murder "by shooting or causing an explosion" carried the death penalty, but most others didn't. I say "most" because even today some offences are capital (e.g. any man who was intimate with Diana while she was married to Charles could have been executed). 2A00:23C4:7916:5100:B5:BE45:9F68:23D1 (talk) 18:41, 6 August 2019 (UTC)

... but wouldn't have been. That possibility was abolished a year after her death. Dbfirs 20:10, 6 August 2019 (UTC)

I have restored the question to the OP's original wording, which as it was inappropriately modified by another contributor. [1] [2] Nil Einne (talk) 14:42, 14 August 2019 (UTC)