Side story on the recent gun spree

[jmm99]

I start with Kopel, The Natural Right of Self-Defense - Heller's Lesson for the World (Syracuse Law Review, 2008).

Kopel primarily looks to "natural law" in this article, but also deals with some statutory law - e.g., the 1689 English Declaration of Rights (aka "English Bill of Rights"; actually a Royal-Parliament Compact). That important document (a partial model for the Declaration of Independence) was interpreted differently in the UK and the "US" prior to the American Revolution. That divergence has only increased after that; not only re: gun control, but also with respect to the limitations of legislative power.

The American interpretation re: self-defense speaks of "right", not "privilege". E.g., Kopel, p.5, from Gray v. Combs, 30 Ky. (7 J.J. Marsh) 478, 481 (Ky. 1832):

... the right of necessary defence, in the protection of a man’s person or property, is derived to him from the law of nature, and should never be unnecessarily restrained by municipal regulation. However proper it may be for every well ordered community to be tender of the public peace, and careful of the lives of its citizens, there can be neither policy or propriety in extending this tenderness and care so far as to protect the robber, the burglar and the nocturnal thief, by an unnecessary restraint of the honest citizen’s natural right of self-defence.

Sir Matthew Hale, in speaking on this subject, says, “the right of self-defence in these cases is founded in the law of nature, and is not, nor can be superceded by the law of society. Before societies were formed, the right of self defence resided in individuals, and since, in cases of necessity, individuals incorporated into society, can not resort for protection to the law of society, that law with great propriety and strict justice considereth them as still, in that instance, under the protection of the law of nature.”

In our "modern" times, "cases of necessity" are easy enough to find.

However, Kopel's view is certainly contested by Vera Bergelson, Professor of Law and Robert E. Knowlton Scholar, whose background is:

Professor Bergelson earned her diploma in Slavic languages and literatures with distinction from Moscow State University and her Ph.D. in philology from the Institute of Slavic and Balkan Studies in Moscow, Russia. She earned her J.D. cum laude from the University of Pennsylvania Law School, where she was on the Law Review and was named to the Order of the Coif.

Professor Bergelson has been a lecturer at Moscow State University, the Polish Cultural Center, and the Literary Institute in Moscow. Before joining the Rutgers faculty in 2001, she was an associate with Cleary, Gottlieb, Steen & Hamilton in New York for six years. She is fluent in Russian and Polish and has a reading proficiency in Bulgarian, Belorussian, and Ukranian.

Ms Bergelson is well-rooted in Russian jurisprudence, which is not close to that of the US.

Kopel quotes her at p.13n.55:

All public officials - a policeman performing a valid arrest, a sheriff taking possession of the debtor’s property pursuant to a court judgment, or an executioner giving the prisoner a lethal injection in accordance with the execution order - act under the right to act that way. In contrast, people acting in self-defense, or pursuant to necessity or parental authority, act merely under a privilege.

Needless to say, police states anywhere in the World are happy enough to see that public officials act as a matter of right, and that their people act as a matter of privilege. One should recall Dr Zhivago's rebuke: "That law gives you the power, not the right."

As we shall soon see, Ms. Bergelson's view is one shared by the UN and most (all ?) European countries.

cont. in pt. 2

[jmm99]

We now turn to a subject discussed often enough at SWC, especially in the context of Africa.

We start with Kopel et al., Is Resisting Genocide a Human Right ? (Notre Dame Law Review, vol. 81:4, 2006):

Abstract:

Closely examining the Darfur, Sudan, genocide, and making reference to other genocides, this Article argues that the genocide prevention strategies which are currently favored by the United Nations are ineffective. This Article details the failures of targeted sanctions, United Nations peacekeepers, and other anti-genocide programs. Then, this Article analyzes the Genocide Convention and other sources of international human rights law. Because the very strong language of the Genocide Convention forbids any form of complicity in genocide, and because the Genocide Convention is jus cogens (meaning that it prevails over any conflicting national or international law), this Article concludes that the Genocide Convention forbids any interference, including interference based on otherwise valid laws, against the procurement of defensive arms by groups which are being victimized by genocide.

Without even reading the article (or abstract), I would have thunk that the answer to the question "Is Resisting Genocide a Human Right ?" would be "yes". But, I would have been wrong - at least so far as the UN is concerned.

We turn to Barbara Frey, Special Repporteur, Prevention of human rights violations committed with small arms and light weapons (2006):

II. THE PRINCIPLE OF SELF-DEFENCE WITH REGARD TO HUMAN RIGHTS VIOLATIONS COMMITTED WITH SMALL ARMS AND LIGHT WEAPONS

19. This report discusses and recognizes the principle of self-defence in human rights law and assesses its proper place in the establishment of human rights principles governing small arms and light weapons.[13] Those opposing the State regulation of civilian possession of firearms claim that the principle of self-defence provides legal support for a “right” to possess small arms thus negating or substantially minimizing the duty of States to regulate possession.[14] The present report concludes that the principle of self-defence has an important place in international human rights law, but that it does not provide an independent, legal supervening right to small arms possession, nor does it ameliorate the duty of States to use due diligence in regulating civilian possession.

[13] Because of the severe limits on space and the breadth of issues that need to be covered in this study, the author does not attempt here to undertake a full legal discussion of the principle of self-defence in international law. For an authoritative discussion of this complex topic, see Antonio Cassese, International Criminal Law (2003). In addition, the legal concepts discussed herein assume a non-conflict setting. Situations of mass human rights abuse and armed conflict involve international humanitarian law and security law principles that require an extended if not completely separate set of legal and policy considerations. For the Special Rapporteur’s findings and recommendations regarding role of small arms and light weapons in violations of human rights and international humanitarian law in armed conflict, see her progress report (E/CN.4/Sub.2/2004/37).

[14] David Kopel, Paul Gallant, and Joanne Eisen, “Is Resisting Genocide a Human Right?” Notre Dame Law Review, vol. 81, No. 4 (2006), p. 1 (“… The Universal Declaration of Human Rights affirms the existence of a universal, individual right of self-defense, and also a right to revolution against tyranny … Taken in conjunction with Anglo-American human rights law, the human rights instruments can be read to reflect a customary or general international law recognizing a right of armed resistance by genocide victims”.).

A. Self-defence as an exemption to criminal responsibility, not a human right

20. Self-defence is a widely recognized, yet legally proscribed, exception to the universal duty to respect the right to life of others. Self-defence is a basis for exemption from criminal responsibility that can be raised by any State agent or non-State actor. Self-defence is sometimes designated as a “right”. There is inadequate legal support for such an interpretation. Self-defence is more properly characterized as a means of protecting the right to life and, as such, a basis for avoiding responsibility for violating the rights of another.

Thus, the Kopel position is expressly quoted and rejected by Ms Frey.

Instead, she invokes the "protective State" - no surprise:

41. States must take effective measures to reduce the need for people to arm themselves by ensuring an atmosphere of public safety supported by law enforcement that is committed and trained to protect the rule of law and to prevent illegal acts.

42. States must also take effective measures to minimize violence carried out by armed private actors. States are required to enforce criminal sanctions against persons who use arms to violate the law. States are further required, under the principle of due diligence, to prevent small arms from getting into the hands of those who are likely to misuse them. Under the due diligence standard, international human rights bodies should require States to enforce a minimum licensing standard designed to prevent small arms from being used by private actors to violate human rights.

43. Other effective measures consistent with due diligence include the prohibition of civilian possession of weapons designed for military use; the sponsoring of effective amnesty programmes to decrease the number of weapons in active use; requirement of marking and tracing information by manufacturers; and incorporation of a gender perspective in policies regarding small arms. States have an affirmative duty under international human rights law to protect groups that are most vulnerable to small arms misuse, including victims of domestic violence.

To advance these objectives, we have "The Checklists" (pp.22-41) - they are the laws that Ms Frey wants to be in effect. They are remarkably similar to "gun control" measures suggested in the US.

I don't think these differences (illustrated by Kopel and Frey) can be bridged: A "right" is too much different from a "privilege"; a "duty" is too much different from a "choice".

Regards

Mike