From: [Cam Woolverton] at [f10.n3801.z1.FIDONET.ORG] (Cam Woolverton)
Newsgroups: talk.politics.guns
Subject: FUNDAMENTAL RIGHT
Date: Tue, 19 Oct 1993 21:23:53 -0500

 * Original to All of 1:3624/7, on <Oct 15 16:53>
 * Forwarded on <Oct 19 21:24> by Terry Buyers of 1:3624/[REDACTED] at [fidonet]

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Copied (from: POLITICS) by Neal Atkins using timEd.

Should citizens be allowed to defend themselves?

By Randall Wright

The right to self-defense is a principle so well established in human
history, its rectitude is assumed.   Nobody but the extreme pacifist
will argue that a person under criminal attack does not have a right
to fight back with appropriate force -- even deadly force, if
necessary. Whenever personal safety is jeopardized, personal defense
is justified, amid civil unrest, natural disaster or in a chance
encounter on a darkened street. But while a right to self-defense is
acknowledged in California law, preparing for self-defense by
carrying a gun is a crime -- unless you are one of the handful of
privileged elite to hold a permit. The state's contradictory
gun-control laws include an express right to carry a loaded firearm
if an individual "reasonably believes that the person or property of
himself or herself or of another is in immediate, grave danger and
that the carrying of th e weapon is necessary for the preservation of
that person or property."  A loaded firearm is also permitted to "any
person while engaged in the act of making or attempting to make a
lawful arrest," holding the criminal until police arrive. At the same
time, however, two other sections of the code require that the State
of California expects a person under criminal attack to politely ask
the crook to wait until the boxcan be retrieved, unlocked and the
weapon loaded. The obvious reality, of course, is that crimes are
designed to occur without warning to the victim, and the window of
opportunity for self-defense is small.  Only the prepared individual
with an accessible weapon of sufficient power is likely to prevail
when avoidance is impractical.

An unarmed woman is so disadvantaged against a 200-pound male mugger
that she is unlikely to make a successful defense if she chooses to
fight and he persists.  A gun in her hand nstantly and dramatically
alters the balance of power.  Given the fact tha t three out of four
women will be victims of at least one violent crime in their
lifetimes, according to a Senate report*, the need for such
equalization is apparent. A man retrieving cash from a banking
machine, a woman heading for her car in a dark parking lot, people in
any of a thousand situations sought out by thieves, murderers,
rapists, drug addicts (and now violent carjackers) -- all have a
right to a loaded  gun under California law, once confronted with
"immediate, grave danger." But being prepared to exercise that right
by carrying a gun in purse, pocket or holster puts one in violation
of the state's firearms code.  The only gun to which there is legal
access is under lock and key, in effect nullifying any practical
right to its use.

The contradiction should not be casually dismissed.  People have
powerful expectations about self-defense -- expectations based on a
fundamental understanding of right and wrong, and of common law.
Writing about defense in 1787, Alexander Hamilton pointed to "axioms
as simple as they are universal; the means ought to be proportioned
to the end; the persons from whose agency the attainment of any end
is ought to possess the means by which it is to  be attained."  This
principle "carries its own evidence along with it... and cannot be
made plainer," he wrote.

Put another way: Without the means to exercise them, rights don't
exist. The principle is familiar to newspapers, whose First Amendment
rights extend to distribution of the news, not merely the printing of
it.  Courts have ruled that cities cannot outlaw newsstands on the
streets, since newsstands are the means by which free speech is
exercised.

Whether there ought to be a right to armed self-defense in the first
place may be a question open to discussion.  But once decided in the
affirmative, it follows that citizens ought to be clothed with al the
powers requisite to its fulfillment.  While a n outright ban on the
defensive use of weapons would be legally problematic, adopting
back-handed legislation to accomplish the same thing is being
dishonest. The current state of the law leads to an unsavory
probability: Unlikely to be caught carrying a gun, many people may
choose to break the law rather than accept the certainty of
unpreparedness.  It is a personal, and therefore powerful,
imperative.  Cons idering that five people, including a pregnant
woman, died in the last seven weeks at the hands of carjackers in
Southern California, the choice would be understandable.


But it's wrong to make criminals of people simply for responding to
legitimate fears in a society increasingly exposed to crime.  The law
should punish only the criminal use of guns, not the mere carrying of
a weapon for defense -- especially when the d efensive act itself
would be lawful in response to "immediate, grave danger." The "wild
West" argument against gun accessibility (the belief that accidental
shootings would increase, that misguided gunplay would arise more
frequently and that crime would go up) is not supported by
experience. Since 1930, the number of fatal firearms accidents
decreased 53 percent, while the population doubled and the number of
guns quadrupled.  In Florida, where citizens were granted a statutory
right to concealed weapons permits in 1987, homicides not only
declined 20 percent over five years but robberies and assaults
involving firearms are down sharply as well.  Of 145,484 permits
issued there between October 1987 and March 1993, only 16 were after
licensing -- a microscopic ratio of .0001. A study at St. Louis
University found that citizens nationwide actually have a better
record for shooting the right person than the police -- by a factor
of five. In the United States, the number of cases in which citizens
have used firearms for defensive purposes -- an average of 691,000
time per year during 1985-90, by a recent survey -- approximates or
exceeds the estimated number of gun crimes annually.  Yet  defense is
overshadowed in the news media by an emphasis on gun crime, to the
benefit of the gun control agenda. With nearly 50 percent of
households in America possessing firearms, according to a New York
Times poll, and a staggering 200 million guns estimated to be in
civilian hands nationwide (the entire U. S. population is just 250
million), the alleged danger to society would appear to be
overstated.  If anything, those figures illustrate the non-violent
nature of gun owners, the vast majority of whom are ordinary folks
who exercise a high degree of  responsibility.

But if ordinary people are not allowed to resist crimes against their
persons, who will?  The police freely admit they can't stop crimes
from happening.  They can't be everywhere at once.  It's their job to
catch the bad guys only after a crime had been committed.  And they
are under no legal obligation to put themselves in hanger by
interceding on a citizen's behalf.

Nor do individuals have a statutory or constitutional right to expect
the police to protect them.  In 1982, the U.S. 7th Circuit Court of
Appeals affirmed that "there is no constitutional right to be
protected by the state against being murdered by crim inals or
madmen," or to "even so elementary a (government) service as
maintaining law and order." The California Government Code goes
further, granting blanket immunity to state and local governments so
that they are not liable for the failure to provide sufficient police
protection.  A victim of crime will find it impossible to collect
damages from a city (as numerous plaintiffs discovered after the 1965
Watts
riots) without an extraordinary showing of negligence or
discrimination. Clearly, the first line of defense against crime is
the individual citizen, not the police after the fact.  This is the
fundamental issue that California's current gun law fails to address
squarely and honestly. Denying people their only realistic means of
emergency defense is not rational or warranted in light of available
data about the behavior of gun owners.  And it's hard to take the
alternatives seriously -- chemical sprays and karate, as suggested
by the San Diego County Sheriff's Department.

The law ought to be corrected to provide a carefully regulated,
non-discriminatory system of issuing gun-carry permits to people for
general self-defense purposes.  A law-abiding person's occasional
desire for added personal security ought to be honored.

California's existing permit system is unfairly exclusionary.
Generally speaking, ordinary citizens cannot get gun-carry permits
because law enforcement agencies, which are authorized by law to
issue them, don't recognize general self-defense as a vali d
justification.  Even a substantiated death threat was not reason
enough for the Los Angeles Police Commission to grant a gun permit to
actor Edward James Olmos last month. Personal protection, on the
whole, is reserved to a tiny, privileged class of Californians --
people who carry large amounts of money on the job, for example, or
retired policemen, who are awarded permits as professional courtesy
(not to mention other p ersons of prominence or influence).

But isn't any person's life as important as any other?  And shouldn't
people be able to defend themselves against criminals if they choose?
The calm, reflective answer to both questions is yes. To declare
otherwise is to promote a distorted cultural view under which the
state tells citizens they have no alternative but to be victims.

------------------------------------------------------------------------
Mr.Wright is assistant managing editor for graphics for The San Diego
Union-Tribune. * Senate report referenced is Senator Beiden's
Judiciary's report on Violence and Women.

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