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The Claim of Self-Defense Gun Use
Americans are armed out of fear. But is that fear founded?
By Lauren Jackson
The Big Idea: How often are guns used in self-defense, really?
The Daily strives to reveal a new idea in every episode. Below, we go deeper on one of those from our show this week.
For years, the Rev. Rob Schenck was staunchly pro-gun rights — he even wrote a book connecting the Second Amendment to the Ten Commandments. But then he experienced a conversion at a hotel in Lancaster, Pa.
At an evangelical fund-raiser he was hosting in 2014, Schenck found himself alone with a friend, a fellow pastor from Florida. (Schenck asked not to share his friend’s name out of respect for his privacy.) As their conversation turned to the topic of gun violence, the friend lifted his sports coat to reveal a “Glock 9 millimeter on his belt,” and said, “I am never without this, it’s with me 100 percent of my waking hours, including when I’m preaching,” Schenck recalled. The friend added that if someone came in to attack his congregation, he’d “take him out from the sacred desk.”
Schenck probed the hypothetical: But what if, in an effort to protect his congregation, he hit a child by accident? “He said, ‘I think that’s the risk we take when we defend those innocent people,’” Schenck remembered. It’s a risk that didn’t sit well with Schenck, who soon became an outspoken evangelical advocate for gun control.
The rationale that guns are needed for self-defense is pervasive. It’s why a majority of American gun owners say they’re armed, the defense that Kyle Rittenhouse has used in his homicide trial — and a concern cited by conservative Supreme Court justices currently considering the constitutionality of restrictions on carrying guns outside the home. But how often are guns used in self-defense, really?
“It’s pretty rare,” David Hemenway, director of the Harvard Injury Control Research Center, said, despite the fact that gun violence in the U.S. is exceptionally common. There are more guns in the country than people , and nearly 40,000 Americans died because of gun violence in 2019. A majority of those deaths were suicides . From 2007 to 2011, only about 1 percent of people who were crime victims claimed to have used a gun to protect themselves — and the average person had “basically no chance in their lifetime ever to use a gun in self-defense,” Dr. Hemenway told NPR in 2018 .
Still, getting exact numbers on the prevalence of what researchers call “self-defense gun use” is tricky. A study cited by the C.D.C . indicates a “range of 60,000 to 2.5 million defensive gun uses each year.” A large majority of firearms researchers , however, “think that’s a wild overestimate for two reasons,” Dr. Hemenway said. First, survey respondents are often shown to report the timing and frequencies of events inaccurately, a phenomenon known as the telescoping effect .
Additionally, people involved in gun violence often claim self-defense, even if the facts of the case don’t support that claim — a self-presentation bias that can make data unreliable. And when trying to measure rare events, any margin of survey error can create huge variables in the results.
Conservative proponents of gun rights often cite the higher end of the estimated range as evidence of prevalent “positive” gun use. “These studies don’t deter the simple fact that a gun in the hands of a good person can save lives,” said Amy Hunter, director of media relations at the National Rifle Association.
Although these stories often make headlines , experts say they are outliers — and note that the presence of a gun increases the risk of a fatality. Homicides are 6.8 times more common in states with the most guns versus those with the least, and access to a gun triples the likelihood of death by suicide .
So while Americans continue to arm themselves out of fear, a criminologist in Britain suggests a different approach.
Erin Sanders-McDonagh, a senior lecturer in criminology at the University of Kent in Canterbury, said that while parents at her son’s school in London “are terrified of their kids getting mugged,” the answer wasn’t to arm themselves or their kids in a city where knife violence was common .
“I see them putting their kids in taxis, finding alternative routes of getting them around London, making sure they go out in groups or using technology to make sure that they’re safe,” Dr. Sanders-McDonagh said. “The response isn’t to send them out with a machete and hope that they’re going to come back OK.”
Listen to our episodes about gun control to learn more .
Behind the music for the mediterranean.
On Wednesday’s episode , we heard the story of Martín Zamora, the owner of a funeral parlor in Algeciras, Spain, who has taken on an unusual line of work: He is committed to identifying the bodies of migrants who have washed up on shore, and then getting their bodies back to their homes so that they can be buried.
The producer Rachelle Bonja, along with our audio fellow Chelsea Daniel, created some of the original music for the episode. Below, you can take a closer listen to two of their songs:
1. A Somber Theme
When Rachelle told me about this episode she was producing, I was struck by her descriptions of Martín: a 61-year-old man who is always wearing a suit, and whose job is to rescue the bodies of drowned migrants. Martín is often the last person in contact with the migrants before they are returned to their families. With this in mind, I wanted to write a song that combined elements of the water where the migrants are found with a melody that represents the somberness of Martín’s daily work. The piece is underscored by an ambient drone that sounds like water bubbling. I wanted the music to feel both reflective and warm, so I incorporated an arpeggiated mandolin line anchored by a bass. It becomes more prominent in the middle of the piece and then disappears back into the texture of the ambient drone. — Chelsea Daniel
2. Achraf’s Theme
I wanted to make a piece for Achraf Ameer, a 27-year-old from Morocco, who had been missing for weeks before Martín reached his family. This piece is dedicated to Achraf — and to all the people who take this very dangerous journey across this sea border in search for a better life. I was inspired by Kaori Muraji’s rendition of “Gnossienne No. 1” by Erik Satie , because it perfectly strikes a balance between hope and melancholy — a tension that felt present in Achraf’s tragic journey. I also wanted to represent the Mediterranean, a sea that I have a strong personal connection to and that is the heart of this story. I included a moving harp line to echo the sound and quality of its waves — always flowing, transporting people far from home, and the site of many emotional journeys. It’s a strange feeling to write music for people who will never hear it. I hope that in telling Achraf’s story — and trying to grasp the emotional toll of migration across the sea — we can translate the experience for the part of the world that lives far from it. — Rachelle Bonja
On The Daily this week
Monday: A Supreme Court case that could transform America’s relationship with guns .
Tuesday: Representative Abigail Spanberger of Virginia, a moderate Democrat, discusses her reservations about President Biden’s agenda.
Wednesday: The story of Martín Zamora : When migrants die at sea, he gets them home.
Thursday: A Times investigation found that 100 new laws have been passed that wrest power from public health officials. How will this affect America’s response to a future pandemic?
Friday: Are we at the end of the pandemic? We ask Dr. Anthony S. Fauci .
That’s it for the Daily newsletter. See you next week.
Have thoughts about the show? Tell us what you think at [email protected] .
Were you forwarded this newsletter? Subscribe here to get it delivered to your inbox.
Love podcasts? Join The New York Times Podcast Club on Facebook .
Lauren Jackson is a journalist based in London. More about Lauren Jackson
Pros and Cons of Self-Defense | Should you use Self-Defense
In our time, self-defense is one of the most valuable rights. In 2021, there were 74,403 aggravated assaults in the US. Consequently, having a right to defend yourself is crucial. Yet, there are many cons to learning the art of protecting yourself.
As a general rule, the pros of self-defense are that it’s an international right. Thus you can use it worldwide. In addition, you can carry various weapons to assist you in protecting yourself and your surroundings. However, learning how to defend yourself properly may be a lengthy process.
As much as I love self-defense, I know it has many disadvantages. Hence many people may avoid their journey with self-defense and using it. That leads to fewer people having the proper training to respond to life-threatening situations .
If you’re unfamiliar with my experience in the field, I was a special forces operator for a long time. Consequently, I’ve gone through many self-defense and other martial arts classes. Thus I know that I’m capable enough to share my knowledge with you.
Self-defense has plenty of benefits. Consequently, before we start using it, we need to acknowledge them. In doing so, we’ll ensure we know what we can and can’t do in imminent-danger situations.
Self-defense is legal internationally.
Because self-defense involves using physical force against an attacker, some may be hesitant to use it. They may not want to come out guilty over a stupid argument. Consequently, they won’t use self-defense.
Self-defense is legal internationally. Hence people who decide on using it in a foreign country or state will come out innocent if they used the right appropriately. Because of that, understanding international law regarding self-defense is crucial.
I have an entire post on the topic of international self-defense laws . I encourage you to read this post if you want to understand when and where you can use the right to self-defense to protect yourself.
Additionally, most regulated countries grant the right to self-defense. Yet, some unregulated countries or cities don’t mention when to use it. Therefore, before vising any foreign country, I advise you to read its local laws regarding self-defense.
First, self-defense is around defending yourself. However, it’s a right that allows you to protect others who require urgent help. You can disable a hostile if you’re sure that one is in the process of hurting another individual.
As a whole, you can use physical force to protect others that require urgent help. Furthermore, you may use intimidation using yourself or a weapon to force the hostile to flee. Yet, crossing the limit is rather effortless. For that, once the attacker stops using physical force, you must cease.
With the ability to use physical force, responsibility must come as well. There were many instances where individuals claimed to have used the right to self-defense. However, there was no proof or justification to use such right.
Because of that, before using self-defense, you must interpret the situation and decide whether it’s a situation that you can use it. How do you do that? Go through the laws of self-defense in your country or state. That way, you’ll ensure you never get caught with your pants down.
Using weapons to your advantage
Martial art vastly involves using body parts for physical force. Overall, it’s not as effective as most weapons. Not only the damage you can cause is lower when you use your body as a weapon, but you’ll cause self-injuries.
Today, many people carry a self-defense weapon on them. Thus the damage they inflict upon hit increases. Consequently, the chances they have to disable an attacker rises. Additionally, having a firearm will cause intimidation to the hostile, hopefully forcing him to flee.
For that reason, arming yourself is a fantastic idea. Today, the rate of people who buy knives is rising. Hence we can interpret that some understand the importance of using a lethal/nonlethal weapon to protect yourself and your surroundings.
Before buying a self-defense weapon , understanding the different types and products is crucial. For that reason, I encourage you to check out an article of mine on the topic of what self-defense weapon you should buy? There, I dive into great details on firearms and nonlethal, legal weapons.
Eventually, I can say that carrying a pistol is best for me. Yet, find the most suitable weapon, lethal or nonlethal, for your likings. For that reason, I can’t force you to purchase a particular firearm. Instead, I recommend appropriate options.
Most individuals aren’t aware of the benefits of self-defense. Consequently, they have no clue how to defend themselves if anything turns south. Now, imagine you can protect yourself and others. That’s a massive increase in confidence and self-assuredness.
Generally, being knowledgeable and capable of self-defense is a massive increase in self-confidence. Not only will you ensure nobody can harm you, but others will also respect you on a greater level. Hence learning self-defense increases self-confidence.
If you’ve heard the sentence “Fake it till you make it.’ It’s not applicable in our context. You can’t just use self-defense out of the blue and expect to disable an attacker. However, you can fake self-confidence and pray that the attacker will flee.
Now, we’re not like that. We’re responsible for our actions and doings. Hence learning self-defense will solely assist us in life.
Self-Defense improves physical condition.
As a living human being, keeping your body fit is crucial. With technology taking over our lives, maintaining a healthy physical condition will provide plenty of benefits.
As a whole, maintaining a healthy physical condition is vital. Not only do people who maintain a healthy physical condition live longer, but they can also perform various actions that are impossible for others with physical condition-related health issues.
Why do you think 99% of special forces operators are healthy and fit? That’s because they need to perform many actions somewhat demanding for a normal human being. For that reason, they’re remarkably fit.
Additionally, practicing self-defense, mainly participating in self-defense classes, will be somewhat challenging for your body. Consequently, your physical condition will increase.
Your mental state will improve.
Today, many people don’t have self-discipline. They may be watching Netflix or doing any other time-consuming activity. Therefore, as time progresses, fewer people participate in challenging activities. Working out, for instance, is a demanding activity that yields results.
Practicing self-defense will instantly improve your mental state. Having the ability to protect yourself and your surroundings will assist you in staying stress-free. Additionally, it’ll force you to work out, eventually causing you to improve your physical condition and mental state.
The benefits of working on your mental state are massive. Reducing stress is a typical example of a result of that. However, there are plenty of other benefits such activities can cause.
In addition, having a healthy mental state is correlated with achieving long-term goals. Thus you’ll be able to complete many challenging activities.
Self-defense has plenty of pros. However, practicing it may cause some trouble. Yet, despite the cons, I encourage you to practice it.
It’s a lengthy process.
Although practicing self-defense will grant you the ability to protect yourself and others, it’s quite a long journey getting there. For that reason, many people quit in the middle of the process.
Self-defense is a lengthy process. Consequently, many people quit while being in the process. Therefore, they won’t reach the point where they improve their mental state ad physical condition. Hence to achieve that point, understand that it’s a prolonged process.
However, as much as it’s a con of self-defense, it’s also a pro. Understand that people like you and me are constantly looking for a challenge. Therefore, practicing self-defense will keep us progressing and completing goals.
Because of that, before getting into self-defense, I encourage you to consider wisely the consequences. If you’re unwilling to change and put effort into a lifestyle, don’t begin with self-defense.
You may not reach your goal.
Taking the ability to defend yourself for granted is one of the biggest mistakes. That said, many people who start their self-defense journey never finish it. Therefore, working hard to reach your goals is required.
Because self-defense is a vast topic, you may not reach your goal. Ultimately, the destination is to have the ability to defend yourself and others around you. Consequently, because it’s a demanding subject, you may never have the capability of doing so.
That said, with determination and hard work, you’ll be able to reach any goal you’ll set. However, with practicing self-defense, you’ll not only increase your confidence, but you’ll also build up a tough . This mental state you’re going to have will allow you to reach any goal you have in life.
Because of that, to reach your self-defense goal, you must work hard.
It can give a false sense of security.
Self-defense is no magic. Even confident individuals in their skills may still be vulnerable to attackers. Therefore, staying alert at all times is essential to keep you secured.
Practicing self-defense may grant a false sense of security. Consequently, avoiding such circumstances is crucial in keeping yourself safe. Another way of countering false security is to be on alert constantly. That way, you’ll be able to respond to any threatening situation.
Additionally, preparing yourself for a dire scenario is fundamental in responding. How do you do that? You ensure you know how to use your weapon or body to disable a hostile
Furthermore, you want to imagine a scenario where you need self-defense to protect yourself or others. That way, you won’t be thoroughly surprised and frightened when it happens.
You may get into legal trouble.
Everywhere you go, checking the local laws regarding self-defense and the possession of weapons is helpful. Because of that, when I travel, I constantly check the local knife legislation, and I always carry a legal firearm. That way, I’m able to protect myself if I need to.
Although self-defense is an international right, some are hesitant to use it for legal reasons. They may consider that they might come out guilty. Consequently, they won’t respond to a threatening situation. Instead, they’ll flee and take no responsibility.
Worldwide, the use of self-defense means is legal. Consequently, we know that if we use physical force to disable a hostile, we’re in the clear.
However, there may be consequences of the use of violence. In some unregulated countries, getting into legal trouble is not a dream. It may happen.
Consequently, when we’re traveling, we want to be checking the local self-defense laws . Additionally, follow the basic principles of the law. Stopping the use of violence once the attacker is disabled, for instance, is vital to keep yourself free from charges.
I encourage you to check out an article I wrote about self-defense laws .
As much as I’m a big fan of self-defense, there are many cons to consider. Because many people are hesitant to start practicing it, I wrote the entirety of the pros and cons.
That way, you’ll be able to decide for yourself if you’re willing to begin your journey. If you do, I encourage you to follow my website, blinklift.com , to keep yourself updated and nurtured.
Practicing self-defense assist you in building yourself. It increases your self-confidence, mental health, and physical condition. All of these are particularly essential to continue growing as a person.
On the other hand, self-defense is lengthy and demanding progress, may cause legal trouble, and be challenging. Therefore, it won’t be a good fit for many people.
However, if you want to build yourself and progress in life, practicing self-defense is a fantastic way to begin doing so. In addition, having the ability to protect yourself is vital. Lastly, you’ll be able to defend people close to you, such as friends and family. Therefore, they’ll respect you more, and your confidence will increase.
Lastly, ask yourself the following question. Are you willing to risk the safety of yourself and others close to you? If you’re not, what are you keen to do to ensure they stay safe?
I've served in the military as a special forces operator for 4-years. In that period, I've trained in many martial arts, including karate, MMA, BJJ, boxing, and even Krav Maga. I want to share my passion with you, so here it is!
One thought on “ Pros and Cons of Self-Defense | Should you use Self-Defense ”
Your article gave me a lot of inspiration, I hope you can explain your point of view in more detail, because I have some doubts, thank you.
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Killing and harming others are paradigmatic wrongs. And yet there is at least one intuitive exception to this prohibition—namely, killing or harming in self-defense, or in defense of others. Consider:
Murder : Attacker is culpably trying to kill Victim because he is jealous of Victim’s success. Victim can save his own life only by lethally throwing a grenade at Attacker.
With the exception of strict pacifists, there is broad consensus in morality and law that defensive harm can be permissible in cases like this. However, as we shall see, it is surprisingly difficult to explain the grounds and limits of this permission.
1.1 Liability vs. Lesser-Evil Justifications
1.2.1 the culpability account, 1.2.2 the causal account, 1.2.3 the responsibility account, 1.3.1 the scope of liability, 1.3.2 causal location, 1.3.3 causal contributions, 1.3.4 liability without causation, 2. agent-relative justifications, 3.1 narrow and wide proportionality, 3.2 proportionality and culpability, 3.3 proportionality and modes of agency, 3.4.1 opportunity costs, 3.4.2 harms and wrongs, 4.1 liability and necessity, 4.2 the scope of necessity, 4.3 distributing harms amongst the liable, 4.4 responsibility for defensive options, 4.5 provocateurs, 5. defense against justified threateners, 6.1 self-defense vs. other-defense, 6.2 other-defense as a duty to rescue, 6.3 other-defense and consent, 7. uncertainty, works cited, other works, other internet resources, related entries, 1. liability justifications.
On a standard view, the moral wrongness of killing and injuring is grounded in persons’ having stringent moral rights against such treatment. If defensive harming is at least sometimes morally permissible, it needs to be explained how the use of force can be consistent with these rights. Two broad types of justification are common in the literature.
The first holds that a person’s right against harm, though weighty, is not absolute and may be permissibly infringed if necessary to achieve a sufficiently important good. This is known as a lesser-evil justification. To illustrate, consider Trolley :
Trolley : A runaway trolley is lethally heading towards five innocent people. A bystander, Engineer, can divert the trolley away from the five down a side-track. The diverted trolley will kill Workman. (Thomson 1985. Based on a case in Foot 1967)
Although they are sensitive to outcomes, lesser-evil justifications are not straightforward consequentialist permissions. Crucially, the harmed party retains their right not to be killed, and this exerts significant normative force. It explains why the justification obtains only when there is a substantial disparity between the harm caused and good achieved, and not simply when harming is overall net beneficial. The persistence of the right also accounts for the widespread intuition that those who are harmed on lesser-evil grounds are owed compensation. More controversially, some argue that those subjected to lesser-evil harms are permitted to forcibly resist in defense of their rights (we return to this question in §5 )
By contrast, in cases like Murder a second type of justification obtains. The permission to kill Attacker cannot be explained by his right’s being overridden by the greater good, since killing him does not save more lives. Moreover, Attacker has no standing to complain about being harmed, nor a claim to compensation ex post (and he certainly does not have a permission to fight back.) Instead, the permission to kill Attacker is explained by his lack of a right not to be killed in the circumstances. This is known as a liability justification for harming.
There is disagreement about precisely what it means to be liable to a harm. Some theorists understand liability as involving the forfeiture of one’s usual rights. Others argue that our rights are already specified in such a way as to accommodate liability: Attacker does not forfeit his right when he attacks Victim; rather, he never had a right not to be killed under those circumstances (Draper 2016: 92). We might also think that liability is not limited to cases of forfeited rights, but rather identifies costs that we lack rights against bearing quite generally. A person’s being liable to pay her taxes, for example, does not seem to depend on her having forfeited her usual right to keep all of her income (Tadros 2016a: 110–118). On this broader view, one is liable to a harm insofar as one has a duty to bear it, irrespective of how that duty arose (for additional discussions of the nature of liability, see Dempsey 2016; Renzo 2017; Lang 2014, 2017; Ferzan 2016).
1.2 Grounds of Liability
One of the key questions in the literature on defensive harm concerns the conditions under which a person is liable. It is helpful to distinguish two areas of debate. The first focuses on the relevance (if any) of facts about individuals’ agency, such as their beliefs, evidence, intentions, culpability, and degree of moral responsibility. The second focuses on the relevance (if any) of causal relations between an individual and a threat of harm. In this sub-section, we will canvass some of the main positions on the agential conditions of liability. For ease of exposition, we will focus on causally straightforward cases, in which an individual poses a direct threat to others. We will consider the causation debate in §1.3 .
The culpability account holds that a person is liable for posing an unjust threat only if they are blameworthy (or are otherwise open to moral criticism) for doing so (Ferzan 2005, 2012). This account gets the intuitively correct result in Murder : Attacker is liable to defensive harm since he acts on the basis of a culpable intention to kill Victim. However, other cases yield more controversial results:
Conscientious Driver : Driver, who always drives carefully and keeps her car well-maintained, faultlessly loses control of her car. She will hit and kill Victim unless Victim blows up the car, and Driver, with a grenade (McMahan 2005a: 393–394). (Driver is usually described as a (minimally) morally responsible threatener .)
Ray Gun : Falling Person is helplessly blown by the wind down a well, at the bottom of which Victim is trapped. Falling Person will crush Victim to death unless Victim vaporizes her with his ray gun. If he does not vaporize her, Falling Person will survive her fall (Nozick 1974: 34). (Falling Person is typically described as an innocent or non-responsible threatener .)
According to the culpability account, Driver is not liable because she acts permissibly given her evidence, despite the risk she poses, and so is not culpable. Falling Person is not liable because she is not acting, and thus cannot be acting culpably. Yet many find it implausibly restrictive that Victim may not kill in self-defense in these cases. On the assumption that killing one person in defense of another is permissible only if the former is liable, a more permissive account of liability seems called for (we consider challenges to this assumption in §2 ).
The causal account of liability is most closely associated with Judith Jarvis Thomson. It holds that there is a single explanation of the permissibility of harming both culpable threateners, such as Attacker, and innocent threateners, such as Falling Person—namely, that each will violate Victim’s right not to be harmed unless Victim harms them (Thomson 1991). While most people grant that Attacker threatens to violate Victim’s right, the claim that Falling Person also threatens to violate Victim’s right is controversial.
Thomson argues that this follows from the fact that Falling Person in Ray Gun lacks a right to kill Victim. According to Thomson, this entails that Falling Person is under a duty not to kill Victim. Falling Person will fail in this duty—and thereby violate Victim’s right—just in case she does kill Victim. Since she is threatening to violate Victim’s right not to be killed, Falling Person lacks a right not to be killed. Hence, Victim may kill Falling Person to save his own life, even granting that Falling Person is morally innocent.
The causal account captures the intuitive permissibility of using defensive force against Falling Person in Ray Gun . It also permits killing morally responsible (but non-culpable) threateners such as Driver. But this broader scope of defensive permissions is secured, at least on Thomson’s construction, by endorsing the controversial view that one need not exercise agency in order to violate a right. Merely causing Victim’s death, when one lacks a right to do so, suffices. It also holds that one can be under a duty to refrain from doing something even if one is unable to refrain. Several commentators argue that Thomson’s view entails, implausibly, that falling stones can violate rights (McMahan 1994: 276, 2005a: 388; Otsuka 1994: 80; Zohar 1993: 608; Rodin 2002: 85–87). Stones lack rights to kill. Thus (it seems) Thomson must think stones under a duty not to kill. If so, they too must fail in this duty, and therefore violate rights, when they kill.
There seems to be at least some scope for Thomson to resist this move (Kamm 1992: 47). Those who believe that Falling Person has a right not to be killed must believe that, unlike a stone, Falling Person is a moral agent, assuming that only moral agents have rights. Restricted to moral agents, Thomson’s view avoids labelling stones rights-violators. Moreover, it is plausible that one can fail in a duty without exercising one’s agency, and also plausible that one can fail in a duty even if one is unable to fulfill that duty. For example, if I forget to meet you for lunch, despite promising to do so, I fail in my duty to keep my promise even if my forgetting is not a result of my agency, and I have no control over my forgetting.
However, Thomson’s reliance on causal roles makes it hard for her to prohibit harming at least some innocent people whom she herself considers it impermissible to harm. Plausibly, someone who maliciously blocks Victim’s escape from a fire is liable to defensive harm. If Thomson grants this, she must also grant the permissibility of harming a person who innocently blocks one’s escape (Frowe 2014a: 25–26). If the malicious obstructor plays the right kind of causal role to violate Victim’s rights, and violating rights does not require agency, then both innocent and malicious obstructors must be liable to defensive harm. Yet Thomson, in line with most people’s intuitions, explicitly rejects the permissibility of defensively harming innocent obstructors (Thomson 1991: 290).
The responsibility account holds that a person is liable for posing an unjust threat only if they are morally responsible for doing so (McMahan 1994, 2005a; Otsuka 1994; 2016). Michael Otsuka suggests that a threatener is morally responsible if she is
(1) of sound mind, (2) in control of her actions, and (3) aware of the dangerousness of what she is doing. (Otsuka 2016: 52)
A person can be morally responsible for a threat without being culpable. For example, consider cases of mistaken defense:
Mistake : Homeowner sees on the news that a dangerous murderer has escaped from the local prison. Victim, the murderer’s innocent identical twin, breaks down in his car near Homeowner’s house. Unaware of his brother’s escape, Victim rings the doorbell, intending to ask to use the phone. Homeowner mistakes Victim for his murderous brother, and takes aim at Victim with her shotgun. (McMahan 2005a: 387)
Victim has done nothing to forfeit his rights against being harmed: He poses no threat to Homeowner and lacks any intention to appear threatening. However, Homeowner’s evidence is that Victim poses a lethal threat to her. Victim is epistemically indistinguishable from a genuine threatener. Given this, Homeowner is not culpable or blameworthy for the fact that she threatens Victim. Nonetheless, it seems plausible that Homeowner is morally responsible for an objectively unjust threat to Victim. Defenders of the responsibility account hold that this renders Homeowner liable to defensive harm, which explains why Victim (or a third-party) is permitted to defensively kill her.
More controversially, Jeff McMahan argues that Driver in Conscientious Driver is morally responsible, though not culpable, for the threat she poses to Victim. Driver knows that driving is a risky activity and nonetheless chose to engage in it. Although driving is permissible relative to her evidence —she has no reason to think that she will lose control of the car—it is nonetheless impermissible relative to the facts , given that driving on this occasion will endanger Victim’s life. McMahan argues that Driver’s knowledge of the riskiness of driving, combined with the wrongness of this instance of driving, makes her liable to defensive harm. (McMahan 2005a: 394).
Proponents of the responsibility account often ground these verdicts in a particular conception of distributive justice, according to which fairness requires individuals to bear the costs of their own risk-imposing activities (McMahan 2005a; Otsuka 1994; see also Montague 1981; Draper 2009, 2016; Gordon-Solmon 2018). On this view, we should treat agents like Driver and Homeowner as engaging in moral gambles. If a gamble turns out badly and the agent ends up threatening harm to an innocent person, it is fairer that the gambler suffer harm, rather than the victims, because they are responsible for the fact that a harm now has to be borne by somebody (even if taking the gamble was justified according to the agent’s evidence). Hence, the agent who took the gamble forfeits her right not to be harmed for the sake of her victim. McMahan also argues that if two or more people bear responsibility for a threat of unjust harm, it is fair to make the most responsible person bear the full costs of preventing that harm, if defensive costs cannot be divided between them. On this view, liability has an important comparative dimension, and slight differences in responsibility can make a decisive difference to liability (McMahan 2011a: 551).
In contrast to agents like Homeowner and Driver, Falling Person is not plausibly morally responsible for the threat she poses, since she has been helplessly blown down the well by the wind. Despite her obvious causal connection to the threat to Victim’s life, the responsibility account holds that she is not liable to be defensively killed by Victim. Michael Otsuka supports this conclusion, arguing that since Falling Person is no more morally responsible for the fact that Victim’s life is in danger than a bystander, she has the same moral status as an innocent bystander. If killing bystanders is impermissible, then killing Falling Person is also impermissible (Otsuka 1994). The responsibility account yields a similarly restrictive verdict in the case of individuals who threaten as a result of temporary delusions or mental illness. Insofar as threateners are not morally responsible for their actions, they retain their usual rights against being harmed, even if they will otherwise kill other innocent people. The responsibility account thus permits killing a narrower range of threateners than the causal account, but a broader range than the culpability account.
We now turn to some worries for the responsibility account. One challenge is posed by cases such as Cell Phone :
Cell Phone : Unbeknown to Caller, a terrorist has rigged Caller’s cell phone such that when Caller next makes a phone call, he will detonate a bomb that will kill Victim.
McMahan argues that Caller is not liable to be killed because, unlike Driver, Caller has no reason at all to suspect that using his activity will endanger an innocent person. Since Caller does not knowingly risk harming Victim he is not morally responsible for posing a threat. But, despite McMahan’s suggestion that there is a difference in kind between cases like Driver and Caller, it seems more like a difference in degree (McMahan 2005a: 397). It is, clearly, not impossible that the phone is rigged. The difference is rather that, on Caller’s evidence, the chances of its being rigged are tiny, whereas Driver’s evidence suggests that she has a somewhat greater (but still very small) chance of harming an innocent person. McMahan’s account of moral responsibility thus depends on the idea that small differences in foreseeability are very morally significant. Driver is liable to be killed to save Victim; Caller is not.
More generally, some worry that the responsibility account rests on too thin a notion of moral responsibility. According to this objection, merely engaging in a foreseeably risky activity, and having bizarre bad luck, is not morally significant enough to defeat the weighty constraint on killing (Lazar 2009; see also, Burri 2020). This point seems especially forceful in cases in which a person’s evidence is that she is required , rather than merely permitted, to use force (Christie 2015: 75; Tadros 2011: 232–234). To illustrate, consider a variation on Mistake in which Victim’s twin is a notorious child-killer, and thus Homeowner’s evidence is that Victim will murder her child unless she uses force. Parents are plausibly required to defend their children against prospective murderers. Of course, Victim is not, in fact, a child-killer. But in this case, it is not obvious that we can point to Homeowner’s moral gamble to explain why it is fair that she forfeits her right not to be harmed. Gambles are typically optional: it is the fact that gamblers choose to engage in them, even though they could have done otherwise, that makes it fair for gamblers to bear the costs when their gambles turn out badly. By contrast, it seems unfair that Homeowner forfeits her rights by doing what her evidence tells her she is morally required to do (for a contrary view, see Quong 2020: 52–54).
One might also dispute the particular verdicts that proponents of the responsibility account believe help to vindicate their account. The claim that Driver is liable has proved particularly contentious. One objection holds that there is no obvious asymmetry between Driver and Victim in terms of responsibility and fairness. Rather, both agents bear moral responsibility for the fact that a lethal cost must be borne by someone, assuming that Pedestrian could foresee that she might be threatened by an out-of-control car whilst walking by the road. Given this, why should we conclude that Driver ought to bear the full cost rather than, say, toss a coin? (Lazar 2009: 715; see also, Ferzan 2012: 676–683). A different objection holds that Driver is not liable because he does not in fact threaten Victim’s rights. Jonathan Quong argues that we should distinguish between cases like Driver and Homeowner. Though each case involves an agent who acts permissibly relative to their evidence, there is an important moral difference between them. Quong argues that, given the overall benefits of permitting people to prudently drive, the practice of prudent driving is morally justified despite the risks it imposes. This assessment shapes our moral rights, such that we lack rights that other people refrain from prudent driving. Thus, the evidence-relative permissibility of Driver’s action does not depend on her mistaken assumption that Victim lacks a right not to be endangered by her. By contrast, Quong argues, the evidence-relative permissibility of Homeowner’s endangering Victim does depend on her mistaken assumption that Victim is liable to be killed. Homeowner treats Victim as if he lacks a right that he in fact possesses, and thereby fails to accord Victim the moral concern he is owned. Quong argues that it is this fact about how Homeowner treats Victim that grounds Homeowner’s liability to defensive harm (Quong 2012: 68; 2020: Chs. 2&6).
As these various challenges show, it is possible to accept the responsibility account’s central tenet that liability is grounded in moral responsibility for unjust threats, while nonetheless disagreeing about the correct account of moral responsibility, whether liability to defensive harm is a matter of distributive fairness, and/or the scope of our moral rights against harm.
1.3 Liability and Causation
One question is whether an agent can be liable only to harms that avert threats to which she causally contributes (the “local view”), or if her liability can instead extend to (at least some) harms that avert threats independently posed by others (the “global” view).
The local view tracks the idea that individuals should only be liable for threats that they are (in some sense) responsible for. But there are cases that cast doubt on this intuition. Consider:
Simultaneous Hit Men : Evelyn hires a hit man to kill Wayne. Fred has also hired a hit man to kill Wayne. Both hit men arrive at the same time. Because of where they are standing, Wayne’s only means of defense is to use Fred as a shield against Evelyn’s hit man (killing Fred) and Evelyn as a shield against Fred’s hit man (killing Evelyn). (Adapted from Tadros 2011: 192.)
The local view implies that Wayne’s use of defensive forces is impermissible, because he lethally uses Evelyn and Fred to prevent threats that neither are causally responsible for. But this seems very counter-intuitive, supporting a more global view (Tadros 2011: Ch.12)
However, an important challenge for the global view is whether it can impose a principled limit on the range of threats for which an individual can be liable. In Simultaneous Hit Men , the two threats are concurrent and qualitatively similar. But if we reject the idea that agents can be liable only to avert threats to which they causally contribute, then it is hard to see why agents are not potentially liable with respect to all manner of threats that are distant in space and time (McMahan 2005a: 763. For a defense of this implication, see Øverland 2011). Intuitively, it looks like we want a view that is global, but not too global, but a middle position might not be tenable.
Sometimes an agent does not pose a direct threat themselves, but instead contributes to threats posed by others. To what extent is an agent’s position in the causal chain morally relevant to liability, holding other factors equal?
One possibility appeals to the idea that there is a morally significant difference between doing harm and enabling others to cause harm. Applied to the question of defensive harm, one suggestion is that liability (or at least liability to being killed ) attaches only to direct threateners and does not transmit “down the chain” to contributors (Rodin 2008: 50, n.14; Haque 2017: 71–72). But this view seems quite restrictive:
Arrows : Andy is firing lethal poisoned arrows at Victim. Annabel makes the arrows and passes them to Annika. Annika dips the arrows in poison and passes them to Andy. Victim can only defend herself by lethally shooting Annika or Annabel (Based on a case in Frowe 2014a: 167)
If liability (or liability to be killed ) only attaches to direct threateners, then it looks like Annika and Annabel are not liable and so Victim is not permitted to defend herself. But this looks counter-intuitive: Annika and Annabel seem to be morally on a par with Andy. To deal with this kind of case, defenders of the “no transmission” idea need to add an exemption. For example, they might stipulate that liability transmits only if the causally remote agents are (in some sense) working together with the causally proximate agents to pose a threat (Rodin 2011b: 449; Haque 2017: 66). However, it is a matter of ongoing debate whether these modifications are successful (see Frowe 2014a: 167–172; 2019, forthcoming; Haque 2019).
A more modest view holds that both indirect and direct threateners can be similarly liable, but that the conditions of liability are more demanding in the case of indirect threateners. One defense of this asymmetry appeals to the idea that doing harm is harder to justify than enabling others to cause harm (Draper 2016: 143–144; Hosein 2019: 193–195). To illustrate, consider:
Gun 1 : Bad Guy threatens to kill Victim unless Victim shoots and kills an innocent person.
Gun 2 : Bad Guy’s gun is locked in a safe. Bad Guy threatens to kill Victim unless Victim gives Bad Guy the code for the safe. If Victim gives up the code, Bad Guy will use the gun to kill an innocent person. (Based on a case in Draper 2016: 143).
Many find it intuitive that it is impermissible for Victim to cause the death of an innocent person in the first case, but permissible in the second (or, at very least, that there is a significant moral difference between the two) (Draper 2016: 143–144). If we combine this putative asymmetry with the assumption that agents who are justified in causing harm are immune from liability (we discuss this assumption in §5 ), then it follows that there are cases in which an indirect threatener is not liable for enabling a threat, though she would have been liable had she posed that threat directly. (Note that this asymmetry is compatible with the view that enablers and direct threateners who lack justifications are equally liable [Frowe 2019: 629]). Of course, this view depends on the plausibility of the underlying claim that there is a relevant moral asymmetry between doing and enabling harm (for discussion, see Rickless 2011; Hanna 2015; Tadros 2018; Barry & Øverland 2016: Chs.5–6; Hurka 2005: 47–50).
If we think that the distinction between direct and indirect threateners marks a morally significant point in the causal chain, this raises the further question of whether we can also draw morally relevant distinction within the class of indirect threateners. For example, one possibility is that the liability of indirect threateners is sensitive to the degree of their remoteness from the threat (for discussion, see Tadros 2016a: 126–130).
A further issue is whether the size or degree of an individual’s causal contribution to a threat affects their liability. An affirmative answer seems quite intuitive. For example, several writers argue that civilian contributions to unjust wars are too causally insignificant to generate liability (or at least liability to defensive killing ) (Fabre 2009a: 60–61; McMahan 2009: 225) More precisely, the idea here is that (i) individuals can causally contribute to threats to a greater or lesser degree, and (ii) that the harm to which an individual is liable is sensitive to the degree of contribution.
Much of the debate takes (i) for granted and focuses on the plausibility of (ii). Some authors have challenged (ii) by highlighting cases in which killing intuitively “small-scale” contributors is intuitively permissible (Frowe 2014a: 78, 175). For example:
Bathtub : Bad Guy wants to drown Victim in the bathtub and offers a $20 reward for helpers. Bad Guy holds Victim down, while 110 Helpers each pour one liter of water into the bath. 100 liters are sufficient to kill Victim. (For a similar case, see Draper 2016: 82)
Each Helper contributes a tiny portion of the water that kills Victim, and each Helper’s contribution makes no difference to whether Victim is killed (the threat is overdetermined.) Yet it seems plausible that Victim is permitted to kill (at least) one Helper if doing so is necessary for escape.
More recently, attention has turned to whether (i) is defensible. The challenge here is two-fold. First, we might doubt the coherence of the view that causal contributions come in degrees (Sartorio 2020). Second, even if we can identify a metaphysically respectable account of scalar causal contribution, it is not clear that it will possess the kind of moral significance capable of determining liability (Tadros 2018; Beebee & Kaiserman 2020). However, work on the metaphysics of scalar causation is undergoing something of a renaissance. So perhaps we should not be overly skeptical about the prospects for vindicating the intuition that moral responsibility and liability are (in some way) sensitive to causal thresholds (for discussion, see Kaiserman 2017, 2018; Beebee & Kaiserman 2020; Bernstein 2017).
The preceding debates concern different ways in which causal connections might be relevant to liability. But, more radically, we might challenge the assumption that any causal connection to a threat is necessary for liability. Call this assumption the causal requirement . Here we set out three challenges to this requirement.
The first is the case of futile attempters . Consider the following case:
Firing Squad : Victim is a prisoner of war about to be wrongfully executed by a five riflemen execution squad. Only one of the rifles has real bullets, but none of the riflemen know which this is. Unbeknownst to them, Victim has a gun. Pre-emptively killing any of the riflemen will scare off the rest and allow Victim to escape. (Adapted from Christie 2020: 380)
If causation is necessary for liability, only the rifleman with real bullets can be liable. But this seems counter-intuitive. If Victim can escape only by killing one of the causally ineffective riflemen, it seems hard to believe that this would be much harder to justify than killing the causally effective rifleman (Christie 2020: 382). This suggests that merely attempting to pose a threat may be enough for liability to harm, at least if the attempter is culpable (Tadros 2016a: 121–124).
The second challenge to the causal requirement concerns omissions . Consider:
River : Jimmy accidentally falls into the river and will soon drown. Sally can easily pull Jimmy to safety, but she refrains because she doesn’t want to get her shoes wet. Jimmy can throw a rock at Sally, causing her to fall into the water and allowing Jimmy to drag himself to safety using Sally’s body. If he does this, one of Sally’s fingers will be eaten by piranhas.
Let’s assume that Sally is not initially required to rescue Jimmy at the cost of one of her fingers. However, some writers argue that Sally’s failure to discharge her duty to rescue Jimmy at a low cost to herself renders her morally responsible for his current predicament. This responsibility renders her liable to bear considerably greater costs for Jimmy’s sake (such as the loss of a finger), and Jimmy (as well as third-parties) may impose the costs of rescue on her (Barry & Øverland 2016: Ch.3; Barry 2018: 649; Tadros 2014a: 365. For the contrary view, that liability for failing to discharge a duty is restricted to the cost required by the initial duty, see Haque 2017: 70–71).
A third family of challenges to the causal requirement focus on the moral significance of certain relationships between causal and non-causal agent s (Bazargan 2013; Tadros 2014b). One view holds that non-causal complicity can render an agent liable. Consider:
Redundant Lookout : A gang carry out a bank robbery. One gang member—Bob—is tasked with acting as a lookout (though the gang would still have proceeded with the robbery in the absence of a lookout). However, Bob falls asleep immediately. During the robbery, the gang threaten to kill Witness. Passer-By spots the situation and realizes that the only way to save Witness is to shoot Bob, which will cause the robbers to flee. (Adapted from Bazargan 2013: 182–183)
Though Bob does not causally contribute to the threat to Witness, he nonetheless seems a legitimate target of defense. As Saba Bazargan argues (drawing on Kutz 2000), Bob is morally connected to the threat to Witness because Bob shares participatory intentions with the other gang members: an intention to “do his part” in the cooperative act of robbing the bank. On this view, an agent can be liable to harm to prevent threats posed by other members of a cooperative project in which she intentionally participates, even if her participation is not causally efficacious (Bazargan 2013: 184.)
One noteworthy implication of non-causal cases is that they can be appropriated in support of a version of the culpability account of liability (see §1.2.1 ). As we saw, the chief complaint against the culpability account is that it is too restrictive, rendering too many threateners non-liable. This objection suggests that culpability is not necessary for liability. However, the cases of attempters, omitters, and conspirators might be taken as evidence that culpability can be sufficient for liability (for related discussion, see Ferzan 2005, 2012: 689–696; McMahan 2005b: 751–768).
As the foregoing makes clear, no account of liability to is likely to match all our pre-theoretical intuitions about when we may use defensive force. Of course, we must sometimes revise our intuitions to fit the best theory. But some theorists suggest that we can resolve misalignments by positing an additional justification for defensive harm. On this view, the fact that a person is not liable to defensive harm (and harming them is not the lesser evil) does not entail that it is impermissible to harm them. Instead, defensive force may be permissible in virtue of the defender’s having an agent-relative prerogative to prefer their own interests (or the interests of others to whom they are specially related).
The notion of an agent-relative prerogative has traditionally been employed to explain why individuals are permitted to refrain from aiding others when it is costly to do so, rather than the permissibility of harming others (Scheffler 1982: 23). Yet, as critics point out, it is hard to see how the claim that one may attribute one’s own interests extra weight can be restricted in this way (Kagan 1989: 20). Of course, if causing harm is morally worse than allowing harm, this will make it harder to justify harming compared to failing to save. But this does not support the view that prerogatives are relevant to failing to aid, but irrelevant to harming.
Whilst originally conceived as an objection to the idea of prerogatives, several theorists of defensive harm embrace this conclusion, arguing that prerogatives (or the related notion of associative duties), play an important role in explaining the scope of permissible self- and other-defense (Levine 1984; Davis 1984; Quong 2009; 2020: Ch. 3; Fabre 2009b; 2012: 61; Lazar 2013). According to these writers, the extra weight that we may attach to our own interests, or the interests of special others, permits us to infringe others’ rights not to be harmed. Jonathan Quong argues that prerogatives provide an independent justification for harming, in addition to liability and lesser-evil justifications (Quong 2009; 2020: 70). Seth Lazar, in contrast, argues that the additional weight we must ascribe to the interests of special others, in light of our associative duties to them, affects what counts as the lesser-evil when acting in other-defense (Lazar 2013).
One important payoff of these views is that they can account for the permissibility of harming threateners such as Falling Person, Driver, and Caller without relying on the claim they are liable to be killed. Importantly, since we each have these prerogatives, it is permissible for non-liable threateners to employ counter-defense against defenders. For example, Falling Person and Victim have symmetrical defensive permissions on this view. Moreover, those who are permissibly harmed on the basis of an agent-relative prerogative or associative duty may also be owed compensation.
However, the main challenge for these views is to impose moral limits on the permission to harm the non-liable. Why, for example, does my personal prerogative not permit me to eat a baby if necessary to avoid starvation, or lethally trample over innocent obstructors? If one may kill a non-liable person to save oneself it looks as if many innocent bystanders will be rendered legitimate targets, alongside innocent threateners. Proponents of agent-relative permissions have defended additional principles that restrict the range of non-liable persons who may be permissible harmed (Quong 2009; 2016; 2020: 80–92; Lazar 2015). But their verdicts are nonetheless revisionary in many cases.
Even when an aggressor is liable to defensive harm, there are still important constraints on what may be done to them. Consider:
Slap : Angela is angry with Victoria for spilling tomato juice on Angela’s carpet and is about to slap her. The only way Victoria can defend herself is to kill Angela with her flamethrower.
Angela culpably poses an unjustified threat to Victoria, but it would obviously be morally wrong for Victoria to defend herself. Using the flamethrower would be disproportionate . The proportionality constraint holds that the bad effects of a defensive action must not be excessive in relation to the good achieved. Though seemingly simple and intuitive, things quickly become complex once we try to identify the factors relevant to proportionality judgments.
Whether the use of defensive force is proportionate depends on the status of the person it is imposed on. Consider:
Grenade : Andy attacks Victor. Victor can defend himself by throwing a grenade that will cause harm to both Andy and an innocent bystander, Billy.
In order to assess the proportionality of Victor’s defensive action, we cannot simply compare the magnitude of the threat Victor faces with the total amount of harm that Victor will cause. Proportionality also crucially depends on how the harm is allocated between Andy and Billy. As McMahan has influentially proposed, the permissibility of Victor’s use of force depends on two distinct proportionality assessments. Narrow proportionality assesses harms imposed on persons who, like Andy, are liable to some harm. The idea is that persons are not liable to harm simpliciter , but to a certain amount of harm. Narrow proportionality thus considers the upper limit on an individual’s forfeiture of their right against harm. By contrast, wide proportionality assesses harms imposed on non-liable persons like Billy. Here, the focus is on whether the good achieved by defense is sufficient to justify overriding an individual’s right against harm. Wide proportionality thus sets an upper limit to a lesser-evil justification for harm (McMahan 2009: 19–20).
Since narrowly disproportionate harms are those that exceed an individual’s liability, several writers have argued that harms to liable persons should be subject to both a narrow and wide proportionality assessment. On this view, there may be “combined justifications” for harming an individual, in which a portion of the harm inflicted justified in terms of their liability (and so is narrowly proportionate), while the remaining portion is justified as the lesser evil (and so is widely proportionate) (McMahan 2014a: 438–442; Bazargan 2014; Tadros 2011: Ch.11. For skepticism, see Steinhoff 2019).
Because narrow and wide proportionality assessments track very different kinds of justification for harm (liability and lesser-evil), the two assessments differ dramatically in their permissiveness. For example, it seems intuitive that it would be proportionate for Victor to inflict more harm on Andy than Andy threatens to impose on Victor. By contrast, in order to render harming Billy proportionate, the good that Victor thereby achieves would have to considerably exceed the harm done. A similar asymmetry applies when we consider proportionality and the numbers of persons defensively harmed. For example, killing one innocent person seems (widely) proportionate only if doing so saves a considerably larger number of innocent lives (recall Trolley from §1.1 ). By contrast, if one innocent person is being lethally attacked by a gang, it seems (narrowly) proportionate to kill a large (perhaps very large) number of attackers in order to protect the victim.
This last intuition has attracted considerable attention. While it seems intuitively proportionate to kill several culpable lethal attackers, many find it unacceptable that there is no limit on the number that may be killed. This implication seems particularly hard to swallow in the case of attackers who, though liable, are not fully culpable. But there is considerable theoretical difficulty in justifying such a limit. If, considered in isolation, each of the multiple attackers meets the conditions for liability to be killed, then it is hard to see how defensive killings that are each (narrowly) proportionate can somehow become disproportionate when aggregated. As Frances Kamm puts it:
One compares the wrong to be avoided with what would have to be done to each wrongdoer one at a time, and if there is no violation of proportionality in any individual comparison then there is no violation tout court. (Kamm 2011: 133–134)
This problem has generated a number of creative and complex solutions (for a rich discussion, see Tomlin 2020). One strategy holds that liability justifications for killing multiple aggressors can be overridden by the badness of killing (Rodin 2011a: 99; 2017). Related views appeal to the idea that the killing of liable persons leaves a 'residual injustice' (McMahan 2011b: 155–156) or to the notion of combined justifications (see above) to resolve the puzzle (Bazargan 2014). A more radical approach denies that each of the multiple aggressors is in fact liable (Gordon-Solmon 2017) or posits a sui generis proportionality constraint (McMahan 2017).
Several theorists argue that narrow proportionality judgments should be sensitive to the culpability of the liable individual (McMahan 2005a: 394; Bazargan 2014; Rodin 2011a: 82–84). On this view, an individual may be liable to a certain amount of defensive harm for posing a threat if they do so fully culpably, but to some lesser amount of harm to the extent that they possess a valid excuse. For example, duress or intoxication may provide an agent with a partial excuse for posing a threat, while an agent who threatens on the basis of false, but reasonable, beliefs may be fully non-culpable.
However, Jonathan Quong has recently argued that this view generates counter-intuitive results. Consider:
Muggings : Dave decides to violently mug another person and has no responsibility-diminishing excuse for doing so. Eric threatens to do exactly the same thing to a different person, but is partially excused as a result of some mild coercion by others.
Assaults : As a prank, Frank’s friends gave him three alcoholic drinks that Frank believed were non-alcoholic. Frank is now mildly drunk. He threatens to wrongfully assault a man at the bar. Gary is sober, but he threatens to wrongfully assault a man at the bar with the same degree of force as Frank. (Quong 2020: 116)
Quong argues that it is counter-intuitive to think that there is some amount of harm that it is would be proportionate to inflict on Dave but not Eric, or on Gary but not Frank. Instead, a person’s degree of liability is set by the importance of the right they threaten, and not their level of culpability.
In addition to the questions of who is harmed and how much , it has also been suggested that proportionality judgments are sensitive to also the way in which harm is brought about (the “mode of agency”). For example, non-consequentialists typically endorse at least some of the following claims:
- Causing harm is harder to justify than allowing harm to occur.
- Intentionally causing harm is harder to justify than causing harm as an unintended side-effect.
- Harming a person in a way that uses that person as a means is harder to justify than harming a person in way that does not use them as a means.
- Directly causing harm is harder to justify than enabling other people to cause harm.
- Causing harm is harder to justify than preventing harm from being prevented.
If any of these moral asymmetries are plausible, then it seems natural to weight them in proportionality assessments (Rodin, 2011; McMahan 2014b). On this view, it may be proportionate to cause harm via one mode of agency, but disproportionate to cause an identical level of harm to the same person(s) via a different mode.
One interesting question is whether modes of agency apply differently in assessments of narrow and wide proportionality. For example, one might hold that if a person is liable to a harm, then it is morally irrelevant how that harm is brought about. Alternatively, we might think that narrow proportionality assessments should be sensitive to at least some of these moral distinctions. For example, it might be argued that an agent is liable to a certain level of harm that prevents them from posing a threat, but is liable to a lesser harm that involves using her as a means (McMahan 2009: 219–221). On this view, persons are not liable simply to a certain level of harm, but rather to a certain level of harm brought about in a certain way (Gordon-Solmon 2019).
3.4 The Goods of Proportionality
Here we consider some questions about the relevant good effects of defensive action that are relevant to proportionality assessments.
In typical cases, the relevant good effects seem obvious: preventing (or mitigating) the threat of harm to the victim(s). But other cases suggest that additional goods might be admissible. Consider:
Interrupted Rescue: Valerie is about to rescue Billy when she is wrongfully attacked by Amanda. Amanda’s attack will break Valerie’s finger, which will prevent Valerie from rescuing Billy. Valerie can stop Amanda’s attack only by imposing serious harm on her (for a similar case, see Draper 2016: 110)
Valerie’s use of defensive force has two good effects. It prevents the threat to her finger and prevents the opportunity cost of not saving Billy (on opportunity costs and defensive harm, see McMahan 2014: 4–6; Draper 2016: 109–115; Oberman 2019: 199–202). It seems plausible that preventing the opportunity cost can contribute to rendering harming Amanda proportionate: Valerie may impose more harm on Amanda than she would if only her finger were at stake. The difficult question is how much additional harm. Is Amanda liable to lethal harm, given that her attack endangers Billy’s life? This will depend on, among other things, whether there are differences between liability for causing harm and liability for preventing people from being saved.
A victim of unjust attack suffers two distinct bads: the harm caused and the wrong done (Kamm 2014: 75–76). The first is grounded in the victim’s wellbeing , the second in their moral status . One suggestion is that that the value of avoiding wrongs should feature in proportionality assessments (Uniacke 2011: 260). For example, perhaps it is permissible to cause more harm to innocents in the course of rescuing victims of a fire that has been started by an arsonist, compared to a fire started by lightning strike.
Even if we are skeptical that avoiding wrongs permits causing additional harm on innocents, one might nonetheless argue that it is permissible to impose greater harm on liable persons who threaten more serious wrongs, but equal harm. (Quong 2020:107–114) To illustrate, consider:
Negligent Side-Effect : Anthony is hiking and negligently causes rocks to fall towards innocent Violet below, which will harm her to degree H .
Negligent Useful : Anish negligently forms the false belief that Vania has unjustifiably pushed a boulder towards an innocent person. Vania in fact poses no threat to anybody. Anish pushes Vania in front of the boulder in an effort to stop (what he believes to be) her unjust threat, which will harm Vania to degree H . (Based on similar cases in Quong 2020: 98–99)
Both Anish and Anthony threaten an identical quantity of harm to an innocent person. But if we are sympathetic to the idea that usefully harming an innocent person is a graver wrong than unintentionally harming an innocent person as a side-effect, then we might also conclude that Anish is liable to more defensive harm than Anthony.
The gravity of a rights violations might also be sensitive to the existence of special relationships . For example, it seems a greater wrong to be harmed by someone who has a special duty to protect us (such as one’s parent, or a police officer), compared to someone who lacks that duty (Gardner 2013: 105–108). If so, this additional wrongfulness may support a more permissive narrow proportionality judgment.
Even when the use of force satisfies the proportionality requirement, it may nonetheless be morally impermissible. For example, if Victim can avert a lethal threat only by either killing Attacker or breaking Attacker’s arm, it would be wrong to kill Attacker. Though proportionate, killing would be unnecessary in this case. As standardly understood, the necessity constraint requires defenders to compare the available means of averting a threat, rank them according to some relevant moral criteria, and use only the means that is favored by that ranking.
By what criteria should we rank the available means of defense? One intuitive suggestion is the we should rank defensive options according to their harmfulness. On this view, necessity requires defenders to use the least harmful means of averting a threat. However, this proposal requires modification. Consider Ledge :
Ledge : Victim can save his own life by either (a) pushing his culpable attacker, Villain, off a ledge, breaking Villain’s leg, or (b) jumping off the ledge himself, breaking his own arm.
If it is permissible for Victim to break Villain’s leg, and only necessary defense is permissible, breaking Villain’s leg must be necessary. But (we assume) a broken leg is more harmful than a broken arm. How, then, can pushing Villain be necessary for saving Victim’s life, given Victim’s available alternative of jumping at the cost of breaking his own arm? One influential proposal (which we touched on in §3.1 ), is that harms to which a person is liable count for less than harms to which a person is not liable. Since Villain is liable to defensive harm, we can discount Villain’s interests relative to Victim’s interests (as well as the interests of any bystanders) (Lazar 2012:7; McMahan 2016:185). On this view, necessity requires defenders to use the defensive option which causes the least morally-discounted harm.
To be plausible, the necessity constraint must be limited to comparing alternatives that are genuinely available to the defender. Even if an expertly-delivered karate chop could harmlessly render Villain unconscious, this does not make harming Villain unnecessary if Victim is not an expert in karate, even if it is, in some sense, physically possible for Victim to deliver such a blow. It also seems plausible that “availability” should be understood in terms of the defender’s evidence. A hidden trapdoor might offer Victim a means of escaping Attacker without using defensive force. But if Victim has no evidence of this trapdoor, the presence of this less harmful means cannot render force unnecessary (for discussion, see Steinhoff 2019: 174–181).
Necessity is also sensitive to the different probabilities of success of various defensive options. Imagine that in Murder , Victim can either kill Attacker, which has a .9 chance of saving Victim’s life, or break Attacker’s arm, which has a .1 chance of saving Victim’s life. We are likely to think that killing Attacker counts as necessary despite the chance that a much smaller harm could also save Victim’s life. But our intuitions might change as we increase the chances of success of the lesser harm. If breaking Attacker’s arm has a .7 chance of saving Victim’s life, perhaps killing Attacker does not satisfy the necessity constraint.
The relationship between necessity and liability is contested. Consider Jump and Poison :
Jump : Gunman is shooting at Victim, trying to kill him. He chases Victim to the edge of a cliff. Unbeknown to Gunman, Victim has a parachute he can use to jump to safety at little risk to himself. Victim also has a gun that he can use to shoot Gunman.
Poison : Adversary has been slowly poisoning Victim over several weeks. Victim has already consumed a lethal dose of the poison (for which there is no antidote) and will certainly die no matter what.
Internalists argue that a person can be liable only to the least harmful means of averting a threat. On this view, liability has an internal necessity constraint (McMahan 2009: 9). Since Victim can avoid harm by using the parachute in Jump , harming Gunman is unnecessary for averting the threat Gunman poses. Thus, Gunman is not liable to defensive harm. In Poison , harming Adversary is unnecessary because it is pointless. Nothing can be done to avert Adversary’s threat to Victim, and so Adversary cannot be liable to defensive harm.
An advantage of internalism is that it captures the intuitive wrongness of unnecessary force. A disadvantage is that it implies that even culpable attackers may harm their victims in counter-defense, should their victims use unnecessary force against them. If Gunman in Jump is not liable to defensive harm, then any harm he suffers is unjust. It is Victim, then, who seems to be liable to be harmed, should he defend himself rather than jump.
Jeff McMahan and Kaila Draper each argue that internalism can avoid this conclusion because Gunman is more morally responsible than Victim for the fact that someone—either he or Victim—must suffer a harm (McMahan 2011a: 551; Draper 2016: 108). But it is unclear why Gunman is more responsible for this fact, since it is Victim’s responsible choice that makes harm unavoidable. Gunman may be more blameworthy for trying to kill Victim than Victim is for trying to kill Gunman. But this does not entail that Gunman is more responsible than Victim for the threat that Victim poses to Gunman. Another possibility is to distinguish between one’s liability to harm, and one’s right to defend oneself. We might think that Gunman has a right not to be killed, since killing him is unnecessary, but that his responsibility for the initial threat to Victim makes it impermissible for him to harmfully defend himself if Victim forcefully responds to that threat. (For more on this separation, see McMahan 2013; Frowe 2015.)
The standard externalist view holds that a person’s liability is determined by facts about her and what she has done, and not any facts about the defensive options available to defenders. Since both Gunman and Adversary culpably pose unjust threats to Victim, each is liable to defensive force. This suggests that Victim does not wrong either by killing them, and that neither may kill Victim in self-defense.
Proportionate means externalism , in contrast, distinguishes between Gunman and Adversary (Frowe 2014a: 105). On this view, one can be liable to harm that is not the least harmful means of averting a threat, provided that the harm is a means of averting the threat and proportionate to the good secured. Killing Gunman is a means of averting the threat he poses, and is proportionate to saving Victim’s life. Gunman is thus liable to defensive harm on this view. In contrast, since harming Adversary cannot avert the threat she poses, she is not liable to harm.
Externalist views struggle to capture the intuition that even liable people are wronged by being knowingly unnecessarily harmed. Externalists can grant only that unnecessary force is impersonally wrong, and that harming Gunman is all-things-considered impermissible in light of this impersonal wrong. This implication looks especially worrying when it comes to unnecessarily harming non-culpable threateners, such as Homeowner in Mistake , who threatens Victim only because she reasonably believes that Victim poses a lethal unjust threat to her. If Victim can save his own life simply by stepping aside, rather than killing Homeowner, he seems to wrong Homeowner if he instead decides to kill Homeowner as a means of saving his own life. Homeowner seems to have a legitimate complaint against Victim. We might also think that she (or her beneficiaries) are entitled to compensation.
The partialist account responds to this challenge by combining an externalist view of when a person forfeits her usual right not to be harmed with a claim about our humanitarian rights (Firth and Quong 2012; Quong 2020: 145–149). According to this account, people responsible for unjust threats only partially forfeit their rights against being harmed. Even culpable threateners retain a humanitarian right not to be seriously harmed when others can avoid harming them at low cost to themselves. This humanitarian right is grounded in our urgent needs and cannot be forfeited. Thus, on this view, Gunman and Adversary are only partially liable to harm, since Victim can avoid harming each at little or no cost to herself. The fact that harming them will violate their humanitarian rights explains why such unnecessary harm wrongs them.
The necessity requirement involves comparing and ranking options. But what range of options should be compared? A standard assumption is that the necessity requirement adjudicates between available means of saving particular victims from particular threats (McMahan 2013: 2). This assumption has been recently challenged (Oberman 2020; Tadros 2016b; Frowe forthcoming: 8). Consider Trolley Choice and Choice :
Trolley Choice : Trolley A is lethally heading towards five people, and can be lethally diverted towards Workman. Trolley B is lethally heading towards five different people, and can be diverted down an empty side-track. Bystander has time to divert only one trolley. (Frowe forthcoming: 8)
Choice : Attacker is trying to unjustly kill Alice. Defender can prevent this only by killing Attacker. Villain is trying to kill Vicky. Defender can prevent this by making a loud noise that will deter Villain. Defender has time to save either Alice or Vicky, but not both. (For discussion of similar cases, see Oberman 2020)
It is intuitively impermissible for Bystander to divert Trolley A in Trolley Choice , killing Workman. And this impermissibility seems to be grounded in the fact that harming Workman is unnecessary for securing the good of saving five lives. If so, the standard view of the scope of necessity is mistaken. Necessity does not adjudicate only between means of achieving precisely the same end, but is also sensitive to options to achieve morally equivalent or better ends (Oberman 2020). This, in turn, gives us reason to doubt the permissibility of killing Attacker in Choice . Killing Attacker is necessary for saving Alice . But it is not necessary for saving a life .
Consider Multiple Threats :
Multiple Threats : Victim is simultaneously, but independently, attacked by Attacker and Villain, who are equally culpable. Each is trying to kill Victim. Victim can disable Attacker by inflicting 10 units of harm on him. This will also deter Villain. Victim can also disable Villain by inflicting 20 units of harm on him. This will also deter Attacker. (Adapted from Tomlin 2020: 356)
As we saw in §3.1 it is common to treat liability as a one-to-one relationship between a threatener and her victim (McMahan 2017: 5; Rodin 2011a: 99; Kamm 2011: 134–135). On this approach, we ask whether Attacker, rather than Victim, ought to suffer harm, and then, separately, whether Villain, rather than Victim, ought to suffer harm. This assumes that we can judge the necessity of harming Attacker independently of the necessity of harming Villain, and vice versa. But in Multiple Threats , Victim needs to harm only Attacker or Villain to save himself. Harming both violates the necessity constraint, but we can see this only by moving beyond the one-to-one relationship between Victim and each threatener. Moreover, it seems that necessity dictates which of the two should be harmed: Victim should disable Attacker, since this is less harmful than disabling Villain, and achieves the same end of saving Victim (Tomlin 2020; see also Draper 2016: 114–115). If, as McMahan argues, necessity is internal to liability, liability cannot be about these one-to-one relationships either. Rather, liability must involve comparisons across threateners.
A further difficulty with judging necessity arises when a defender bears responsibility for the range of available defensive options. Consider Damage :
Damage : Villain wrongly tries to kill Victim. Victim can protect himself by non-lethally stunning Villain with his Taser, or shooting Villain dead with his gun. Victim destroys his Taser. He can now prevent the attack only by killing Villain.
It seems unlikely that a defender satisfies necessity if they deliberately deprive themselves of less harmful means of defense, at least if they do so at the time of the attack. We might think that earlier choices also preclude satisfying necessity. For example, imagine that Victim knew that there was a high chance that Villain would try to kill him today, and decided to leave his Taser at home. If Victim violates necessity by killing Villain in Damage , he plausibly also does so by killing Villain after deliberately leaving the Taser at home (Schwartz 2020: 3). Of course, this verdict becomes less plausible as we increase the costs to the defender of maintaining defensive options.
Daniel Schwartz suggests that even if Victim’s lethal defense in Damage violates necessity, this does not entail that Victim acts impermissibly. Schwartz argues that Villain’s death could be construed as the lesser evil compared to Victim’s death. He proposes a distinction between excessive harm (which is unnecessary, yet achieves a valuable goal), and wanton harm (which achieves nothing valuable). In general, excessive harms that are part of a defensive action are, Schwartz claims, less bad than wanton harms of the sort that Villain threatens to impose on Victim. Thus, Victim can have a lesser-evil justification for imposing excessive harm on Villain to prevent Villain imposing wanton harm on her (Schwartz 2020: 9–11).
Cases of provocation also raise questions about how a defender’s responsibility for the necessity of using force bears on the permissibility of defense. Consider Provoke :
Provoke : Enemy wants to punch Rival. Enemy insults Rival’s mother, intending to cause Rival to attack him. Rival prepares to punch Enemy. Enemy can prevent this only by punching Rival in self-defense.
Kimberly Ferzan argues that although it is impermissible for Rival to punch Enemy, and Enemy is not liable to be harmed, it is also impermissible for Enemy to defend himself by punching Rival (Ferzan 2013: 615). Since Enemy has unjustifiably engineered the situation in which force against Rival is necessary to avert a threat to himself, Enemy lacks defensive rights against Rival’s predicted response (Ferzan 2013: 616).
On Ferzan’s view, Enemy may not defend himself against being punched, since this is what he predicts Rival will do. But Enemy retains his defensive rights against harms that exceed those he expects Rival to inflict. As Lisa Hecht points out, adopting this type of proportionality constraint for provocateurs produces a counterintuitive asymmetry between provocateurs and ordinary threateners (Hecht 2019: 171–173). According to Ferzan, a provocateur who foresees a lethal response to an insult lacks a right to defend herself against lethal harm. In contrast, a threatener whose punch elicits a lethal response has a right to defend herself against lethal harm. And yet the threatener commits a much more serious wrong than the provocateur. It seems odd, therefore, that the provocateur forfeits her defensive rights to a greater degree.
When an aggressor is liable to be harmed, they are typically morally prohibited from using counter-defense to thwart their victim’s justified use of defensive force. Moreover, third-parties may intervene only on behalf of the victim. We might think that this result holds more generally: If one party is justified in harming another, it follows that the other party is not justified in responding with defensive force. This view avoids the purportedly
paradoxical result that each of two people is justified in trying to bring about the death of the other while keeping himself alive. (Waldron 2000: 715)
However, as we have seen, liability justifications are not the only the only possible justification for causing harm. Sometimes agents may infringe others’ rights not to be harmed, either because doing so is the lesser-evil or (more controversially) because the agent has an agent-relative justification. In these cases, the victim faces a threat of harm to which she is not liable. Are these victims permitted to defend themselves?
Consider a variation on Trolley :
Defensive Trolley : A runaway trolley is lethally heading towards five innocent people. Engineer is about to divert the trolley away from the five towards Workman, who will be killed. Workman can prevent the diversion by throwing a grenade that will destroy the switch, but also kill Engineer. The five will be hit by the trolley. (Frowe 2018: 475, revising a case in Quong 2016: 826)
Assume that Engineer has a lesser-evil justification for killing Workman. Is it permissible for Workman to defend himself against Engineer? Many people have the intuition that it is. These cases thus challenge the view that defensive permissions are necessarily asymmetric.
The debate about harming justified threateners focuses on two key questions (see Mapel 2010 for helpful discussion). First, what is the moral status of justified threateners: are they liable to defensive force? Second, is defensively harming justified threateners morally permitted , all things considered?
Several writers argue that that justified threateners are liable (Steinhoff 2008; 2019: Ch.3; Rodin 2011a: 86–87; Hosein 2014; Draper, 2016: 67–68). On this view, posing a threat of unjust harm is a sufficient ground for liability; the fact that the threat is justified makes no difference. One source of support for this idea is that people whose rights are justifiably transgressed are typically thought to be entitled to compensation for the harms they suffer (Steinhoff 2008: 223–224; Gardner 2011: 42). However, not all claims to compensation for suffering a harm entail a claim to prevent that harm. For example, homeowners are entitled to compensation when their houses are demolished to make way for a new road, but it does not follow that they may forcefully prevent the demolition of their houses.
Some writers deny that agents such as Engineer are liable, arguing that “justification defeats liability” (McMahan 2005a: 399; 2008; 2014; Frowe 2018: 476; Quong 2016: 826). This claim is often defended by appeal to a deeper account of the basis of liability. For example, McMahan argues that if we accept the view that
the assignment of liability follows the distribution of harm in accordance with the demands of justice, (McMahan 2008: 234)
it follows that
there is no reason that justice would demand that unavoidable harm be distributed towards [justified threateners], (2008: 234)
and so these threateners are exempt from liability. Similarly, Quong (2016, 2020) holds that if liability is grounded in treating others as though they lack rights, then justified threateners do not incur liability (since their actions are justified in spite of their victim’s rights.)
On the question of permissibility, those who believe that Engineer is liable to be killed typically hold that Workman may kill Engineer in self-defense, even if this prevents the saving of the five (Steinhoff 2008: 221). Among those who deny Engineer’s liability, opinion is divided. Proponents of agent-relative prerogatives, such as Quong, hold that Workman is permitted to kill Engineer, at least when this does not prevent the saving of the five (Quong 2016: 827). By contrast, McMahan argues that killing Engineer is impermissible, though Workman may harmlessly prevent the saving of the five in order to save his own life (for example, by remotely jamming the switch that diverts the trolley) (McMahan 2014: 111).
A stronger view holds that Workman may not even harmlessly prevent the five’s being saved, and may not kill Engineer to save himself even after the five are saved (Frowe 2018: 476–478). Frowe argues that agents are typically required to act on lesser-evil justifications for defending others. If morality requires Engineer to divert the trolley, it cannot also permit Workman to prevent the trolley’s being diverted. And since Engineer is not liable to be killed, and killing her is not the lesser evil, it is impermissible for Workman to kill Engineer to save his own life.
6. Defending Others
What is the relationship between the morality of self-defense and the morality of defending others? One natural view is that the two share the same underlying rationale, such that the permissibility of other-defense goes “hand-in-hand” with the permissibility of self-defense (Thomson 1991: 306). This seems most plausible in the case of liable attackers. Since the justification for harming such person’s rests on the “entirely impersonal” fact that they have forfeited their ordinary right against harm, it seems plausible that that any suitably situated person may act on that justification (Thomson 1991: 308).
However, as explained in §2 , some writers deny that all justifications for defensive harm are impersonal (or “agent-neutral”) in this way. Proponents of agent-relative permissions hold that some justifications apply only to defense of oneself (or of others to whom one is specially related). If this view is correct, then the permissibility of self and other-defense will often come apart. For example, it may be permissible for an individual to kill an innocent person in order to defend her own life (and perhaps also permissible for her loved ones to kill to save her), but impermissible for third-parties to do so (on whether agent-relative justifications can be transferred, see Bazargan-Forward 2018; Lazar 2015.
Self-defense is typically assumed to be morally optional: victims are permitted to refrain from use defensive force. By contrast, we might think that defending others is presumably morally required (at least if the costs of doing so are not excessive).
This claim is most intuitive when it comes to defending innocent victims from culpable attackers (Fabre 2007). But it is controversial when defending others requires harming innocent persons as the lesser-evil. Recall Trolley , in which Engineer can, at no risk to herself, save five by lethally diverting a trolley towards Workman. Comparatively little attention has been paid to whether Engineer is morally required (and not merely permitted) to save the five. Those who consider the question typically argue that saving is supererogatory, because Engineer cannot be morally compelled to kill Workman (Thomson 1985: 1406; Alexander 2005: 618; Walen & Wasserman 2012: 554).
However, if killing Workman is indeed justified as the lesser-evil, this means that Engineer can prevent serious harm to others at no risk to herself, and without imposing a disproportionate cost on anyone else. If we are normally under a duty to aid when these conditions are met, then diverting towards Workman should also be morally required. The challenge is to explain why acting on lesser-evil justifications should be excluded from the more general duty to rescue (Frowe 2018: 465–466).
Several theorists argue that defending others is subject to an additional moral requirement: that the beneficiary of defense must consent to being defended (or, more plausibly, that the beneficiary must not validly refuse ) (Fabre 2009b: 159–160; Finlay 2010: 292; Parry 2017: 358).
There are different ways of understanding the rationale behind the consent requirement. On one view, the right to use defensive force initially applies only to the victim of aggression. In order for third-parties to be permitted to use force against the aggressor, this right must be “transferred” by the victim (Fabre 2009b: 158). An alternative approach focuses on the victim’s welfare, rather than their rights (Parry 2017: 370–376). On this view, the consent requirement is grounded in the anti-paternalist idea that we may not act “for the good” of another person if they refuse to be benefited (on paternalism, see Dworkin 2002 ). If a victim validly refuses defensive assistance, then defenders cannot justify harming the aggressor by appeal to the benefit it would provide to the victim.
The consent requirement rests on the idea that victims occupy a privileged position within the ethics of defensive harm: It’s their rights and interests that are at stake, so they get to decide whether they are defended. One important objection denies that victims have exclusive control over whether others may act on justifications for harming aggressors. For example, one might argue that victims’ lives and interests are agent-neutrally valuable, and so any agent may act to preserve that value, regardless of the victim’s will (Lazar 2016: 217). The plausibility of this objection will depend on its implications in other cases of non-consensual benefiting. Alternatively, one might argue that we have moral reasons to prevent wrongful attacks that are distinct from the moral reasons to protect victim’s lives and welfare. Perhaps wrongdoing is impersonally bad (Parfit 2017: 354–357; see also, Kamm 2014: 75–76) or bad for the wrongdoer (Tadros 2016c: 1–2, 164; Brownlee 2019). Either way, the consent sceptic can say to the victim: “it’s not all about you !” The success of these objections will depend on whether these alternative moral reasons for defending victims are sufficiently strong to justify harming and killing (for skepticism, see Parry 2017: 379–382; Oberman 2020: 447–452).
One interesting puzzle about the consent requirement is how it applies in cases where multiple victims are threatened, and some victims refuse while others do not. One obvious answer is to adopt a majoritarian interpretation of the consent requirement. But this view generates counter-intuitive results. Consider the following example:
Abuse: Your alcoholic neighbor is mercilessly beating his five adult children. You can rescue the children by defensively harming the neighbor. Four children explicitly and competently refuse defense, while one consents. Are you required to defer to the wishes of the majority in this case? (adapted from Altman & Wellman 2008: 244)
Many find it intuitive that defense would be permissible, despite the refusal of the majority. This tracks the more general idea that individuals’ basic rights place limits on majority rule. Reflection on this kind of case has led many to conclude that the consent requirement imposes only a minimal constraint in multiple victim cases: Provided some member(s) of the victim group do(es) not validly refuse, the consent requirement is satisfied (Altman & Wellman 2008: 243–245; McMahan 2010: 52; Frowe 2014b: 109).
This skepticism has recently been challenged in favor of a more robust interpretation of the requirement (Parry 2017). On this view, if a victim validly refuses defensive assistance, we must exclude the benefit of rescue to that victim when evaluating whether the use of force is proportionate. Defending a group is permissible only if the benefits to the non-refusing victims is sufficient to render defense proportionate. Hence, this is known as the “Proportionate Consent Requirement” (PCR).
The PCR captures the judgment that other-defense is permissible in Abuse . Since it would be proportionate to harm the father in order to defend just one victim, it is permissible to do so provided one victim consents. However, in other cases the justification for defending a group does requires appealing to the good of many victims (and potentially every victim). Consider:
Elevator : Five Victims are riding in an elevator. Aggressor begins to saw through the elevator cable in order kill Victims. Rescuer is able to kill Aggressor by throwing a grenade, thereby saving Victims. However, the blast from the grenade will kill innocent Bystander as a side-effect (Parry 2017: 385).
Let’s assume that it is permissible to kill one innocent person as a side-effect of saving five innocent persons, but not four. In Elevator, the permissibility of using defensive force involves appealing to the good of every member of the victim group. However, since four members have refused intervention on their behalf, the PCR holds that this refusal renders it impermissible to intervene. The good of the single consenting member of the group is insufficient to justify killing the innocent bystander as a side-effect. Indeed, in this case, the PCR holds that defense is only permissible if every victim consents (or does not validly refuse).
One important worry for the PCR is whether it is vulnerable to the same objection that plagued the majoritarian view. If it is objectionable to give a majority the power to veto the defense of a consenting minority, it seems even more objectionable to give a minority of dissenting victims the power to veto the defense of a much larger number of victims.
In this entry, for reasons of space, we have focused primarily on the moral principles that govern the objective (or fact-relative) permissibility of defensive harm. Of course, this leaves open questions about how defensive agents ought to act in light of their evidence and under conditions of uncertainty. While the majority of the debate has also centered on questions of objective permissibility, there is growing literature exploring the subjective (or evidence-relative) ethics of defensive harm (and non-consequentialist moral principles more generally) (see, for example, Tomlin 2019; Haque 2017; Bolinger 2017, 2021, forthcoming; Frowe 2010; Lazar 2018, 2019a, 2019b; van der Vossen 2016).
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The Second Amendment and the Inalienable Right to Self-Defense
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A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. —Amendment II
Modern debates about the meaning of the Second Amendment have focused on whether it protects a private right of individuals to keep and bear arms or a right that can be exercised only through militia organizations like the National Guard. This question, however, was apparently never even raised until long after the Bill of Rights was adopted. Early discussions took the basic meaning of the amendment for granted and focused instead on whether it added anything significant to the original Constitution. The debate later shifted because of changes in the Constitution and in constitutional law and because legislatures began to regulate firearms in ways undreamed of in our early history.
The Founding generation mistrusted standing armies. Many Americans believed, on the basis of English history and their colonial experience, that governments of large nations are prone to use soldiers to oppress the people. One way to reduce that danger would be to permit the government to raise armies (consisting of full-time paid troops) only when needed to fight foreign adversaries. For other purposes, such as responding to sudden invasions or similar emergencies, the government might be restricted to using a militia that consisted of ordinary civilians who supplied their own weapons and received a bit of part-time, unpaid military training.
Using a militia as an alternative to standing armies had deep roots in English history and possessed considerable appeal, but it also presented some serious problems. Alexander Hamilton, for example, thought the militia system could never provide a satisfactory substitute for a national army. Even those who treasured the militia recognized that it was fragile, and the cause of this fragility was just what made Hamilton disparage it: Citizens were always going to resist undergoing unpaid military training, and governments were always going to want more professional—and therefore more efficient and tractable—forces.
This led to a dilemma at the Constitutional Convention. Experience during the Revolutionary War had demonstrated convincingly that militia forces could not be relied on for national defense, and the onset of war is not always followed by a pause during which an army can be raised and trained. The convention therefore decided to give the federal government almost unfettered authority to establish armies, including peacetime standing armies. But that decision created a threat to liberty, especially in light of the fact that the proposed Constitution also forbade the states from keeping troops without the consent of Congress.
One solution might have been to require Congress to establish and maintain a well-disciplined militia. Such a militia would have had to comprise a large percentage of the population in order to prevent it from becoming a federal army under another name, like our modern National Guard. This might have deprived the federal government of the excuse that it needed peacetime standing armies and might have established a meaningful counterweight to any rogue army that the federal government might create. That possibility was never taken seriously, and for good reason. How could a constitution define a well-regulated or well-disciplined militia with the requisite precision and detail and with the necessary regard for unforeseeable changes in the nation’s circumstances? It would almost certainly have been impossible.
Another approach might have been to forbid Congress from interfering with the states’ control of their militias. This might have been possible, but it would have been self-defeating. Fragmented control of the militias would inevitably have resulted in an absence of uniformity in training, equipment, and command, and no really effective national fighting force could have been created.
Thus, the convention faced a choice between entrenching a multiplicity of militias controlled by the individual states, which would likely have been too weak and divided to protect the nation, or authorizing a unified militia under federal control, which almost by definition could not have been expected to prevent federal tyranny. The conundrum could not be solved, and the convention did not purport to solve it. Instead, the Constitution presumes that a militia will exist, but it gives Congress almost unfettered authority to regulate that militia, just as it gives the federal government almost unfettered authority to maintain an army.
This massive shift of power from the states to the federal government generated one of the chief objections to the proposed Constitution. Anti-Federalists argued that federal control of the militia would take away from the states their principal means of defense against federal oppression and usurpation and that European history demonstrated how serious the danger was.
James Madison, for one, responded that such fears of federal oppression were overblown, in part because the new federal government was to be structured differently from European governments. But he also pointed out another decisive difference between Europe’s situation and ours: The American people were armed and would therefore be almost impossible to subdue through military force, even if one assumed that the federal government would try to use an army to do so. In Federalist No. 46, he wrote:
Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain that with this aid alone they would not be able to shake off their yokes.
Implicit in the debate between the Federalists and Anti-Federalists were two shared assumptions: first, that the proposed new constitution gave the federal government almost total legal authority over the army and the militia and, second, that the federal government should not have any authority at all to disarm the citizenry. The disagreement between Federalists and Anti-Federalists was only over the narrower question of whether an armed populace could adequately assure the preservation of liberty.
The Second Amendment conceded nothing to the Anti-Federalists’ desire to sharply curtail the military power that the Constitution gave the federal government, but that very fact prevented the Second Amendment from generating any opposition. Attempting to satisfy the Anti-Federalists would have been hugely controversial and would have required substantial changes in the original Constitution. Nobody suggested that the Second Amendment could have any such effect, but neither did anyone suggest that the federal government needed or rightfully possessed the power to disarm American citizens.
As a political gesture to the Anti-Federalists—a gesture highlighted by the Second Amendment’s prefatory reference to the value of a well-regulated militia—express recognition of the people’s right to arms was something of a sop. The provision was easily accepted, however, because everyone agreed that the federal government should not have the power to infringe the right of the people to keep and bear arms any more than it should have the power to abridge the freedom of speech or prohibit the free exercise of religion.
A great deal has changed since the Second Amendment was adopted. The traditional militia fell fairly quickly into desuetude, and the state-based militia organizations were eventually incorporated into the federal military structure. For its part, the federal military establishment has become enormously more powerful than 18th-century armies, and Americans have largely lost their fear that the federal government will use that power to oppress them politically. Furthermore, 18th-century civilians routinely kept at home the very same weapons they would need if called to serve in the militia, while modern soldiers are equipped with weapons that differ significantly from those that are commonly thought to be appropriate for civilian uses. These changes have raised new questions about the value of an armed citizenry, and many people today reject the assumptions that almost everyone accepted when the Second Amendment was adopted.
The law has also changed. At the time of the Framing, gun control laws were virtually nonexistent, and there was no reason for anyone to discuss what kinds of regulations would be permitted by the Second Amendment. The animating concern behind the amendment was fear that the new federal government might try to disarm the citizenry in order to prevent armed resistance to political usurpations. That has never occurred, but a great many new legal restrictions on the right to arms have since been adopted. Nearly all of these laws are aimed at preventing the misuse of firearms by irresponsible civilians, but many of them also interfere with the ability of law-abiding citizens to defend themselves against violent criminals.
Another important legal development was the adoption of the Fourteenth Amendment. The Second Amendment originally applied only to the federal government, leaving the states to regulate weapons as they saw fit. During the 20th century, the Supreme Court invoked the Fourteenth Amendment’s Due Process Clause to apply most provisions of the Bill of Rights to the states and their political subdivisions. The vast majority of gun control laws have been adopted at the state and local levels, and the potential applicability of the Second Amendment at these levels raised serious issues that the Founding generation had no occasion to consider. It is one thing to decide that authority over the regulation of weapons will be reserved largely to the states. It is quite another to decide that all regulations will be subjected to judicial review under a vaguely worded constitutional provision like the Second Amendment.
Until recently, the judiciary treated the Second Amendment almost as a dead letter. Many courts concluded that citizens have no constitutionally protected right to arms at all, and the federal courts never invalidated a single gun control law. In the late 20th century, however, the judicial consensus was challenged by a large body of new scholarship. Through analysis of the text and history of the Second Amendment, commentators sought to establish that the Constitution does protect an individual right to have weapons for self-defense, including defense against criminal violence that the government cannot or will not prevent.
In District of Columbia v. Heller (2008), the Supreme Court finally did strike down a gun control regulation, in this case a federal law that forbade nearly all civilians from possessing a handgun in the District of Columbia. A narrow 5–4 majority adopted the main conclusions and many of the arguments advanced by the revisionist commentators, ruling that the original meaning of the Second Amendment protects a private right of individuals to keep and bear arms for the purpose of self-defense.
The dissenters interpreted the original meaning differently. In an opinion that all four of them joined, Justice John Paul Stevens concluded that the Second Amendment’s nominally individual right actually protects only “the right of the people of each of the several States to maintain a well-regulated militia.” In a separate opinion, also joined by all four dissenters, Justice Stephen Breyer argued that even if the Second Amendment did protect an individual right to have arms for self-defense, it should be interpreted to allow the government to ban handguns in high-crime urban areas.
Two years later, in McDonald v. City of Chicago , the Court struck down a similar law at the state level, again by a 5–4 vote. The four-Justice McDonald plurality relied largely on substantive due process precedents that had applied other provisions of the Bill of Rights to the states. Justice Clarence Thomas concurred in the judgment but rejected the Court’s long-standing doctrine of substantive due process, which he concluded is inconsistent with the original meaning of the Constitution. Instead, he set forth a detailed analysis of the original meaning of the Fourteenth Amendment’s Privileges or Immunities Clause and concluded that it protects the same individual right that is protected from federal infringement by the Second Amendment.
Notwithstanding the lengthy opinions in Heller and McDonald , their holdings are narrowly confined to invalidating bans on the possession of handguns by civilians in their own homes. Neither case provides clear guidance on the constitutionality of less restrictive forms of gun control, although Heller does set forth a non-exclusive list of “presumptively lawful” regulations that include bans on the possession of firearms by felons and the mentally ill, bans on carrying firearms in “sensitive places such as schools and government buildings,” laws restricting the commercial sale of arms, bans on the concealed carry of firearms, and bans on weapons “not typically possessed by law-abiding citizens for lawful purposes.”
In the short period of time since Heller was decided, the lower courts have struggled to divine how it applies to regulations that the Court did not address, such as bans on carrying weapons in public and bans on the possession of firearms by violent misdemeanants. At the moment, the dominant approach in the federal courts of appeals can be summarized roughly as follows:
- Some regulations, primarily those that are “long-standing,” are presumed not to infringe the right protected by the Second Amendment. Thus, for example, the D.C. Circuit upheld a regulation requiring gun owners to register each of their weapons with the government. Heller v. District of Columbia (“ Heller II ”) (2011).
- Regulations that substantially restrict the core right of self-defense are scrutinized under a demanding test that generally permits only regulations that are narrowly tailored to accomplish a compelling government purpose. Applying a test of this kind, the Seventh Circuit found that a city had failed to provide an adequate justification for its ban on firing ranges. Ezell v. City of Chicago (2011).
- Regulations that do not severely restrict the core right are subject to a more deferential form of scrutiny, which generally requires that the regulation be substantially related to an important government objective. The Third Circuit, for example, held that a ban on possessing a handgun with an obliterated serial number was valid under this standard. United States v. Marzzarella (2010).
The application of this framework has varied somewhat among the courts, and Heller left room for other approaches to develop. One important outstanding issue is the scope of the right to carry firearms in public. Heller laid great stress on the text of the Second Amendment, which protects the right to keep and bear arms, while also giving provisional approval to bans on the concealed carry of firearms.
A ban (or severe restrictions) on both concealed and open carry would seem to conflict with the constitutional text. It would also seem hard to reconcile with the Court’s emphasis on the importance of the right to self-defense against violent criminals, who are at least as likely to be encountered outside the home as within it. Heller , however, did not unambiguously recognize any right to carry weapons in public. Some lower courts have concluded that no such right exists, while others have disagreed. The Supreme Court may eventually have to address the issue.
A more general question concerns the scope of the government’s power to inhibit the possession and use of firearms through regulations that impose onerous conditions and qualifications on gun owners. In the analogous area of free speech, courts have struggled endlessly to draw lines that allow governments to serve what they see as the public interest without allowing undue suppression of individual liberties. If the Supreme Court is serious about treating the right to arms as an important part of the constitutional fabric, we should expect the Justices to encounter similar challenges in its emerging gun control jurisprudence.
—Nelson Lund is University Professor at George Mason University School of Law.
University Professor at George Mason University’s Antonin Scalia Law School
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- Define self-defense.
- Define deadly force.
- Ascertain the four elements required for self-defense.
- Ascertain two exceptions to the unprovoked attack requirement.
- Define the battered wife defense, and explain its justification under the imminence requirement.
- Analyze when it is appropriate to use deadly force in self-defense.
- Distinguish between the duty to retreat and stand-your-ground doctrines.
- Define imperfect self-defense.
As stated previously, self-defense is a defense based on justification . Self-defense can be a defense to assault, battery, and criminal homicide because it always involves the use of force. In the majority of states, self-defense is a statutory defense (Mich. Comp. Laws, 2010). However, it can be modified or expanded by courts on a case-by-case basis.
Most states have special requirements when the defendant uses deadly force in self-defense. Deadly force is defined as any force that could potentially kill. An individual does not have to actually die for the force to be considered deadly. Examples of deadly force are the use of a knife, gun, vehicle, or even bare hands when there is a disparity in size between two individuals.
Self-defense can operate as a perfect or imperfect defense, depending on the circumstances. Defendants who commit criminal homicide justified by self-defense can be acquitted, or have a murder charge reduced from first to second or third degree, or have a charge reduced from murder to manslaughter. Criminal homicide is discussed in detail in Chapter 9 “Criminal Homicide” .
To successfully claim self-defense, the defendant must prove four elements. First, with exceptions, the defendant must prove that he or she was confronted with an unprovoked attack. Second, the defendant must prove that the threat of injury or death was imminent . Third, the defendant must prove that the degree of force used in self-defense was objectively reasonable under the circumstances. Fourth, the defendant must prove that he or she had an objectively reasonable fear that he or she was going to be injured or killed unless he or she used self-defense. The Model Penal Code defines self-defense in § 3.04(1) as “justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.”
In general, if the defendant initiates an attack against another, the defendant cannot claim self-defense (State v. Williams, 2010). This rule has two exceptions. The defendant can be the initial aggressor and still raise a self-defense claim if the attacked individual responds with excessive force under the circumstances, or if the defendant withdraws from the attack and the attacked individual persists.
Excessive Force Exception
In some jurisdictions, an individual cannot respond to the defendant’s attack using excessive force under the circumstances (State v. Belgard, 2010). For example, an individual cannot use deadly force when the defendant initiates an attack using nondeadly force . If an individual does resort to deadly force with a nondeadly force attack, the defendant can use reasonable force in self-defense.
Example of the Excessive Force Exception
Patty and Paige get into an argument over a loan Patty made to Paige. Paige calls Patty a spoiled brat who always gets her way. Patty slaps Paige across the face. Paige grabs a carving knife from the kitchen counter and tries to stab Patty. Patty wrestles the knife away and stabs Paige in the chest, killing her. In this example, Patty provoked the attack by slapping Paige across the face. However, the slap is nondeadly force . In many jurisdictions, Paige cannot respond to nondeadly force with deadly force , like a knife. Paige used excessive force in her response to Patty’s slap, so Patty can use deadly force to defend herself and may not be responsible for criminal homicide under these circumstances.
In some jurisdictions, the defendant can be the initial aggressor and still use force in self-defense if the defendant withdraws from the attack, and communicates this withdrawal to the attacked individual (N.Y. Penal Law, 2010). If the attacked individual persists in using force against the defendant after the defendant’s withdrawal, rather than notifying law enforcement or retreating, the defendant is justified in using force under the circumstances.
Example of Withdrawal
Change the excessive force exception example in Section 5 “Example of the Excessive Force Exception” . Imagine that after Patty slaps Paige across the face, Paige begins pounding Patty with her fists. Patty manages to escape and runs into the garage. She huddles against the garage wall. Paige chases Patty into the garage. Patty says, “Please, please don’t hurt me. I’m sorry I slapped you.” Paige kicks Patty in the back. Patty turns around and karate chops Paige in the neck, rendering her unconscious. In many jurisdictions, Patty’s karate chop is lawful under a theory of self-defense because she completely withdrew from the attack. Thus Patty is probably not criminally responsible for battery, based on the karate chop to the neck. However, Patty could be criminally responsible for battery based on the slap to Paige’s face because this physical contact was unprovoked and not defensive under the circumstances.
Figure 5.3 New York Penal Law
The defendant cannot use any degree of force in self-defense unless the defendant is faced with an imminent attack (State v. Taylor, 2010). Imminent means the attack is immediate and not something that will occur in the future. If the defendant is threatened with a future attack, the appropriate response is to inform law enforcement, so that they can incapacitate the threatening individual by arrest or prosecution. Another situation where imminence is lacking is when the attack occurred in the past . When the defendant uses force to remedy a previous attack, this is retaliatory, and a self-defense claim is not appropriate. The legal response is to inform law enforcement so that they can incapacitate the attacker by arrest or prosecution.
Some state courts have expanded the imminence requirement to include situations where a husband in a domestic violence situation uses force or violence regularly against the defendant, a battered wife, therefore creating a threat of imminent harm every day (Bechtel v. State, 2010). If a jurisdiction recognizes the battered wife defense , the defendant—the battered wife—can legally use force against her abusive husband in self-defense in situations where harm is not necessarily immediate.
Example of an Attack That Is Not Imminent
Vinny tells Fiona that if she does not pay him the $1,000 she owes him, he will put out a contract on her life. Fiona pulls out a loaded gun and shoots Vinny. Fiona cannot successfully argue self-defense in this case. Vinny’s threat was a threat of future harm, not imminent harm. Thus Fiona had plenty of time to contact law enforcement to help protect her safety.
Example of an Attack That Is Retaliatory
Dwight and Abel get into a fist fight. Dwight knocks Abel unconscious. Dwight observes Abel for a few minutes, and then he picks up a large rock and crushes Abel’s skull with it, killing him. Dwight cannot claim self-defense in this situation. Once Dwight realized that Abel was unconscious, he did not need to continue to defend himself against an imminent attack. Dwight’s conduct appears retaliatory and is not justified under these circumstances.
Example of an Imminent Attack under the Battered Wife Defense
Spike severely beats and injures his wife Veronica every couple of days. Spike’s beatings have become more violent, and Veronica starts to fear for her life. One night, Veronica shoots and kills Spike while he is sleeping. In states that have expanded self-defense to include the battered wife defense, Veronica may be successful on a theory of self-defense.
Mary Winkler Defense Video
Dr. Alan J. Lipman Catherine Crier on Winkler Spousal Abuse Murder Trial
Mary Winkler claimed the battered wife defense as an imperfect defense to the murder of her husband, a pastor (Gay, M., 2011).
The defendant cannot claim self-defense unless the degree of force used is objectively reasonable under the circumstances. This requirement primarily focuses on the use of deadly force and when it is legally justified. In general, deadly force can by employed in self-defense when a reasonable person feels threatened with imminent death , serious bodily injury , and, in some jurisdictions, a serious felony (Or. Rev. Stat. 2010). Serious bodily injury and serious felony are technical terms that are defined in a statute or case, depending on the jurisdiction. The Model Penal Code states that deadly force is not justifiable “unless the actor believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat” (Model Penal Code § 3.04(2)(b)).
Example of Appropriate Deadly Force
Nicholas, an intruder, pins Wanda to the floor of her garage and begins to forcibly remove her clothing. Wanda feels around the floor with her hand and finds a screwdriver. She plunges the screwdriver into Nicholas’s neck, killing him. Wanda has used appropriate force and can claim self-defense in most jurisdictions. A reasonable person in Wanda’s situation would feel deadly force is necessary to repel Nicholas’s sexual assault. Nicholas’s attack is a serious felony that could result in serious bodily injury or death . Thus the use of deadly force is legally justified under these circumstances.
Duty to Retreat
Early common law stated that the defendant had a duty to retreat to the wall before using deadly force against an attacker. The majority of states have rejected this doctrine and instead allow the defendant to stand his or her ground if the defendant is not the initial aggressor in the confrontation (State v. Sandoval, 2010). In jurisdictions that still follow the retreat doctrine , the defendant must retreat if there is an objectively reasonable belief that the attacker will cause death or serious bodily injury, and a retreat won’t unreasonably increase the likelihood of death or serious bodily injury (Connecticut Criminal Jury Instructions, 2010). The Model Penal Code defines the duty to retreat by stating that the use of deadly force is not justifiable if “the actor knows that he can avoid the necessity of using such force with complete safety by retreating” (Model Penal Code § 3.04 (2) (b) (ii)). An established exception to the retreat doctrine in jurisdictions that follow it is the defense of the home, which is called the castle doctrine . The castle doctrine is discussed shortly.
Example of the Duty to Retreat
Sandy and Sue have an argument in the park. Sue pulls a knife out of a sheath that is strapped to her leg and begins to advance toward Sandy. Sandy also has a knife in her pocket. In a state that follows the retreat doctrine , Sandy must attempt to escape, if she can do so safely. In a state that follows the stand-your-ground doctrine , Sandy can defend herself using her own knife and claim lawful self-defense. Note that Sandy was not the initial aggressor in this situation. If Sandy pulled a knife first, she could not use the knife and claim self-defense, whether the state follows the stand-your-ground doctrine or the duty to retreat doctrine.
Objectively Reasonable Fear of Injury or Death
The defendant cannot claim self-defense unless a reasonable person in the defendant’s situation would believe that self-defense is necessary to avoid injury or death. If the defendant honestly but unreasonably believes self-defense is necessary under the circumstances, a claim of imperfect self-defense may reduce the severity of the offense (State v. Faulkner, 2010). However, the defendant is still guilty of a crime, albeit a less serious crime.
Example of Unjustified Conduct
Justin, who weighs over two hundred pounds and is six feet tall, accidentally bumps into Wanda, a slender ten-year-old child. Wanda spins around and shakes her fist at Justin. Justin responds by shoving Wanda so hard that she crashes into a telephone pole and is killed. Justin probably cannot claim self-defense under these circumstances. A reasonable person would not believe Wanda is about to seriously injure or kill Justin. Thus Justin’s response is unnecessary and unjustified in this case.
Example of Imperfect Self-Defense
Change the unjustified conduct example given in Section 5 “Example of Unjustified Conduct” . Imagine that a slender, female ten-year-old severely abused Justin when he was younger. Since the abusive incident, Justin has an unreasonable fear of female children and honestly believes that they can and will hurt him if provoked. If the trier of fact determines that Justin honestly but unreasonably believed that Wanda was about to inflict serious bodily injury or kill him, any charge of murder could be reduced to manslaughter on a theory of imperfect self-defense .
- Self-defense is a defense based on justification that allows a defendant to use physical force to protect himself or herself from injury or death.
- Deadly force is any force that can produce death. An individual does not have to die for the force to be deemed deadly.
- Four elements are required for self-defense: (1) an unprovoked attack, (2) which threatens imminent injury or death, and (3) an objectively reasonable degree of force, used in response to (4) an objectively reasonable fear of injury or death.
- Two exceptions to the unprovoked attack rule are an individual’s use of excessive force in response to an initial attack and the defendant’s withdrawal from the initial attack.
- The battered wife defense asserts that a woman who is a victim of spousal abuse may use force in self-defense under certain circumstances, even when the threat of harm is not immediate. The battered wife defense is justified with respect to the imminence requirement: because the abuse is so constant, the battered wife faces an imminent threat every day.
- Deadly force is appropriate in self-defense when the attacker threatens death, serious bodily injury, and, in some jurisdictions, a serious felony.
- The duty to retreat doctrine is a common-law rule requiring a defendant to retreat if it is safe to do so, instead of using deadly force in self-defense. The stand-your-ground doctrine is a rule allowing the defendant to use deadly force if appropriate in self-defense, rather than retreating.
- Imperfect self-defense is a defense available when the defendant has an honest but unreasonable belief that force is necessary to defend against injury or death. Imperfect self-defense reduces the severity of the offense, but does not result in acquittal.
Answer the following questions. Check your answers using the answer key at the end of the chapter.
- Scott’s wife Diane constantly physically abuses him. One night while Diane is sleeping, Scott places a pillow over her face and smothers her. Can Scott defend against a charge of criminal homicide by claiming self-defense ? Why or why not?
- Read Rodriguez v. State , 212 S.W.3d 819 (2006). In Rodriguez , the defendant was convicted of murder and attempted murder. The defendant appealed his convictions on the ground that the jury did not unanimously reject each element of self-defense. Did the Court of Appeals of Texas uphold the defendant’s convictions? The case is available at this link: https://casetext.com/case/rodriguez-v-state-464 .
- Read Shuler v. Babbitt , 49 F.Supp.2d 1165 (1998). In Shuler , the defendant shot and killed a grizzly bear that charged him while he checked a sheep pasture to make sure his sheep were safe. The sheep had already been subjected to several bear attacks. The Fish and Wildlife Service thereafter fined the defendant under the Endangered Species Act. The defendant claimed self-defense against the bear. The Fish and Wildlife Service ruled that the defendant provoked the attack and could not claim self-defense. Did the US District Court for the District of Montana uphold the fine? The case is available at this link: http://www.gilalivestockgrowers.org/documents/ShulerVsBabbitt.pdf .
Law and Ethics: The Menendez Brothers
Were They Entitled to a Jury Instruction on Imperfect Self-Defense?
Read Menendez v. Terhune , 422 F.3d 1012 (2005). The case is available at this link: http://cases.justia.com/us-court-of-appeals/F3/422/1012/569492 .
Lyle and Eric Menendez were tried and convicted of murder and conspiracy to commit murder of their parents. There were two series of trials. The first trial, which had two separate juries, resulted in two hung juries. At the first trial, the brothers introduced evidence of sexual abuse by their father, and the court instructed the jury on imperfect self-defense . The imperfect self-defense jury instruction was based on the brothers’ honest but unreasonable fear that their father would hurt or kill them (Menendez v. Terhune, 2010). The second trial took place in front of one jury and resulted in the convictions. During the second trial, some evidence of abuse was excluded, Lyle Menendez refused to testify, and there was no jury instruction on imperfect self-defense . After sentencing, the brothers petitioned for a writ of habeas corpus based on several claims, including the exclusion of the abuse evidence and failure to instruct the jury on imperfect self-defense (Menendez v. Terhune, 2010). The US Court of Appeals for the Ninth Circuit affirmed the district court’s denial of the petition on grounds that there was insufficient evidence to support the jury instruction on imperfect self-defense and no foundation to support the admissibility of the evidence of abuse. The court held that the evidence confirmed there was no imminent threat of serious bodily injury or death when the brothers killed their parents.
The facts of the case are lurid. Evidence included the sexual abuse of both boys by their father, surreptitiously taped psychotherapy sessions, spending sprees, fabricated mafia hit stories, and alleged will tampering by the brothers after the parents were killed.
- Do you think the Menendez case should have been treated as a “battered child syndrome” case, easing the requirement of imminence and allowing for a jury instruction on imperfect self-defense ?
Check your answer using the answer key at the end of the chapter.
Menendez Brothers Video
Lyle and Erik Menendez News Report
A news story on the conviction of the Menendez brothers is presented in this video:
Bechtel v. State , 840 P.2d 1 (1992), accessed November 13, 2010, http://scholar.google.com/scholar_case?case=14171263417876785206&hl=en&as_sdt=2&as_vis=1&oi=scholarr .
Connecticut Criminal Jury Instructions, No. 2.8-3, accessed November 13, 2010, http://www.jud.ct.gov/ji/criminal/part2/2.8-3.htm .
Gay, M., “Abused Wife Who Killed Preacher Husband Speaks Out,” Huffingtonpost.com website, accessed August 25, 2011, http://www.aolnews.com/2010/11/05/abused-wife-who-killed-preacher-husband-speaks-out .
Menendez v. Terhune , 422 F.3d 1012, 1024 (2005), accessed November 19, 2010, http://cases.justia.com/us-court-of-appeals/F3/422/1012/569492 .
Mich. Comp. Laws § 780.972, accessed November 13, 2010, http://www.legislature.mi.gov/(S(3li5rs55kkzn2pfegtskdunn))/mileg.aspx?page=getObject&objectName=mcl-780-972&highlight=self-defense .
N.Y. Penal Law § 35.15(1)(b), accessed November 13, 2010, http://law.onecle.com/new-york/penal/PEN035.15_35.15.html .
Or. Rev. Stat. § 161.219, accessed November 13, 2010, http://www.leg.state.or.us/ors/161.html .
State v. Belgard , 410 So.2d 720 (1982), accessed November 13, 2010, http://www.leagle.com/xmlResult.aspx?xmldoc=19821130410So2d720_1997.xml&docbase=CSLWAR1-1950-1985 .
State v. Faulkner , 483 A.2d 759 (1984), accessed November 13, 2010, http://scholar.google.com/scholar_case?case=17158253875987176431&hl=en&as_sdt=2&as_vis=1&oi=scholarr .
State v. Sandoval , 130 P.3d 808 (2006), accessed November 13, 2010, http://www.publications.ojd.state.or.us/S53457.htm .
State v. Taylor , 858 P.2d 1358 (1993), accessed November 13, 2010, http://scholar.google.com/scholar_case?case=1539441759711884447&hl=en&as_sdt=2&as_vis=1&oi=scholarr .
State v. Williams , 644 P.2d 889 (1982), accessed November 13, 2010, http://scholar.google.com/scholar_case?case=18157916201475630105&hl=en&as_sdt=2&as_vis=1&oi=scholarr .
Criminal Law Copyright © 2015 by University of Minnesota is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License , except where otherwise noted.
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Here & Now Compass
How often do people use guns in self-defense.
A student participates in a civilian active shooter response course for concealed weapons permit holders on March 24 in Longmont, Colo. Rick T. Wilking/Getty Images hide caption
A student participates in a civilian active shooter response course for concealed weapons permit holders on March 24 in Longmont, Colo.
The only way to stop a bad guy with a gun is a good guy with a gun.
It's a common refrain touted by gun rights advocates, who argue that using guns in self-defense can help save lives. But what is the actual number of defensive gun uses?
According to the Pew Research Center, 48 percent of gun owners say they own a gun mainly for protection. But for years, experts have been divided over how often people actually use guns in self-defense. The numbers range from the millions to hundreds of thousands, depending on whom you ask.
Nra, in new document, acknowledges more than 20 russian-linked contributors.
The latest data show that people use guns for self-defense only rarely. According to a Harvard University analysis of figures from the National Crime Victimization Survey, people defended themselves with a gun in nearly 0.9 percent of crimes from 2007 to 2011.
David Hemenway, who led the Harvard research, argues that the risks of owning a gun outweigh the benefits of having one in the rare case where you might need to defend yourself.
"The average person ... has basically no chance in their lifetime ever to use a gun in self-defense," he tells Here & Now 's Robin Young. "But ... every day, they have a chance to use the gun inappropriately. They have a chance, they get angry. They get scared."
But the research spread by the gun lobby paints a drastically different picture of self-defense gun uses. One of the most commonly cited estimates of defensive gun uses, published in 1995 by criminologists Gary Kleck and Marc Gertz, concluded there are between 2.2 and 2.5 million defensive gun uses annually.
One of the main criticisms of this estimate is that researchers can't seem to find the people who are shot by civilians defending themselves because they don't show up in hospital records.
"The Kleck-Gertz survey suggests that the number of DGU respondents who reported shooting their assailant was over 200,000, over twice the number of those killed or treated [for gunshots] in emergency departments," crime prevention researcher Philip Cook wrote in the book Envisioning Criminology.
Kleck says there is no record of these gunshot victims because most instances of self-defense gun use are not reported.
Here & Now Compass
How the nra worked to stifle gun violence research.
"If you tell the police, I just wielded a gun pointing a deadly weapon at another human being and claimed it was in self-defense, the police are going to investigate that," he tells Young, "and they may well in the short run arrest you and treat you as a criminal until and unless you are cleared ."
On the flipside, Kleck says, criminals who were wounded after a gun was used in self-defense also have no incentive to go to the emergency room because medical professionals have an obligation to report it to the police. But Hemenway points out that if people don't go to the hospital to treat the original gunshot wound, they will inevitably end up there "with sepsis or other major problems."
He also notes that part of the reason experts are so divided on the number is the difficulty in obtaining reliable survey data on the issue.
"The researchers who look at [Kleck's study] say this is just bad science," Hemenway says. "It's a well-known problem in epidemiology that if something's a rare event, and you just try to ask how many people have done this, you will get incredible overestimates."
African-American Gun Rights Group Grows In The Age Of Trump
In fact, Cook told The Washington Post that the percentage of people who told Kleck they used a gun in self-defense is similar to the percentage of Americans who said they were abducted by aliens . The Post notes that "a more reasonable estimate" of self-defense gun uses equals about 100,000 annually, according to the NCVS data.
Another problem is that there is no consensus on the definition of defensive gun use. Some incidents could involve illegal carrying or possession, or they could amount to aggravated assault, the Rand Corp. writes :
Perceptions about the incident and an individual's role are important because much of the literature relies on self-reports: The respondent must have perceived there to have been a crime (or, in some surveys, a suspected or averted crime) and must consider himself or herself a victim rather than a mutual combatant. Even such stringent definitions, however, may not be sufficient to determine whether the event was lawful, legitimate, or desirable from a social perspective.
Even if someone wanted to use a gun in self-defense, they probably wouldn't be very successful, says Mike Weisser, firearms instructor and author of the blog "Mike The Gun Guy." He says many people who carry a gun aren't properly trained to use it in this way, and there is no performance validation standard for police officers.
"If we don't even have a minimum standard, not for training, but for performance validation for our law enforcement," he says, "how in God's name is anybody going to say, 'Well, just because you have a gun in your pocket, you know how to use it in self-defense?' You don't."
- self defense
14 Main Pros and Cons of the Right to Bear Arms
The “Right to Bear Arms” is the 2nd Amendment of the United States Constitution, which became a law collectively with the 9 amendments composing the Bill of Rights. The commandment it holds states that “Well governed armed forces, which are vital to provide security and protection to the independent State, shall not disobey the natural right of a person to bear arms,” proclaiming the militias to recognize completely citizens’ rights. While there are benefits to it, there are also drawbacks. To get a well-informed insight of this law, let us take a look at its pros and cons.
List of Pros of the Right to Bear Arms
1. Symbol of Freedom The individual right to carry arms is seen as an important symbol of individual freedom. In fact, it has become so important that it lasts expression to many people in the US of their individual liberty. There are few symbols as powerful, particularly as this right potentially allows citizens to join a militia and fight a tyrannical government. Much less tangible are the rights to free speech and religion, which lack the power and threat of violence as a check on government tyranny. This symbolic expression of freedom is resonating too deeply with many Americans for them to be deprived of it.
2. Personal Protection With this law, people are permitted to own firearms for self defense or protection whenever they are physically or offensively attacked by other people. In fact, it does not corrupt protection power of citizens to save their selves and live a life free of harm.
3. Well-Regulated Militia As mentioned above, the Right to Bear Arms secures its subjects the right of having arms for their defense, suitable to their degree and condition. In the construction of this law, owners are adhered to comply with the conditions to be responsible for the right they are given to. It even includes the field of hunting games. Certainly, we can reasonably hope that the people in this country will never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty.
4. Better Individuals This law enforces a requirement of firearm license, which can only be purchased after applicants undergo a background check that specifically scrutinizes the presence of a possible history of committed criminal cases. The Right to Bear Arms definitely excludes citizens who have a history of criminal acts against the community or a person.
It does not carelessly provide the right of a person to possess firearms. In fact, before one can purchase a gun, he has to go under a number of safety courses to verify the ability to own a gun harmlessly. Also, the public carrying of firearms is permitted if and only if the arms themselves are concealed. Convincing concealed gun permit should be obtained by the owner.
5. Tighter Controls of Guns This means that there would less shooting. Taking into consideration what ordinary citizens and government officials claim, the fewer guns that are had, the less shooting will be. With such kind of restriction, cutting down on gun crimes can also made easier.
6. Type of Weapons You Have Should Be Negotiable Mostly, gun control activists do not argue the right to own arms. However, they believe that stipulations to gun ownership should be placed but not made to be a limitation of the rights of the constituents.
7. Gun Control Does Not Need to Affect Law-Abiding Citizens Gun control does not need to affect firearms that are used for legal purposes, where in fact, the latest technology allows the tracking of guns and ammo. The technology used also allows firearms to be traced back to their owners. Through this method, it will be simpler for law enforcers to recognize what happened if crimes are committed.
List of Cons of the Right to Bear Arms
1. High Costs Usually, when you purchase a concealed gun permit to validate your ownership, it can be very costly. The said permit is not going to be free and can vary in prices in different states.
2. Irresponsible Gun Behavior The Right to Bear Arms certainly includes a few flaws, such as in the case where the gun gets into the wrong hands like children who just do not understand how to use or manage it. As a consequence, accidents can happen. For a teenager, it might be a game, but it can kill in an instant. Aside from this, a gun can even be dangerous to older people, which is often observed if they are under the influence of alcohol or drugs. Even those who are known to be responsible can make the mistake of using a firearm when intoxicated.
3. More Risk of Violence According to research, people carrying a gun for self-defense were 4.5 times more likely to be shot during an assault than those without a gun in the same situation. This means that firearms may not be the most reliable and effective form of self-defense.
Furthermore, many people claim that adults with guns are often not adequately trained, and there are some states that do not even require a lot of training for concealed gun ownership. Most importantly, the power of controlling the way owners would utilize their guns exceeds this law’s range of concern. Individuals who are committed with physical and emotional stress tend to be more vulnerable to extreme self-consciousness and anger, which most probably lead to homicide.
4. Higher Crime Rate In contrast to crime rate reports by pro guns, there is research that found the Right to Bear Arms can lead to a higher crime rate. According to the research personnel, it appears that “shall-issue” laws had increased aggravated assaults between 1977 and 2006. Interestingly, reports about the connection between firearms and crime seem to contradict each other, but in one certain report, such laws increased rates of violent crime, rape and robbery.
In addition to crime, some even argue that firearms can increase suicide risk. In fact, in 2005, more than half the number of all suicides in the country involved a firearm. Not only do people believe that firearms can increase crime, but they also think that these guns can also increase suicide.
5. Nervous People Around Many people claim that armed citizens are making other people very nervous, where there were reports that scared citizens were informing the police about suspicious people who are looking armed with a handgun. Also, some of them claim that it is difficult for the authorities to tell or distinguish normal responsible citizens who have legal firearms from criminals with firearms.
6. Armed Criminals In contrast to how armed citizens will deter criminals from attacking them, there is the idea on armed citizens can encourage criminals to arm themselves . Criminals would arm themselves so that they can threaten armed citizens which in effect would deter them from resisting the attackers.
7. Danger and Lethality One big issue with firearms is that they sometimes can be dangerous or can turn lethal, especially when a person is under the influence or intoxicated. Even adults who are responsible could make the mistake of having or using guns when intoxicated. In addition, the right to carry firearms can increase the chances of unintended shootings.
According to a study by Matthew Miller (PhD), Deborah Azrael (PhD) and David Hemenway (PhD), approximately 50 people are unintentionally shot every day in the US, and children under 14 years old die every other day from unintended gunfire. As you can see, even with responsible law abiding citizens owning guns, there can be a lot of tragic accidents if guns are not restricted.
The Right to Bear Arms has become a controversial section under the Bill of Rights that concerns the enforcement or prevention of acts that restricts people from keeping gun possession or complete a ban from owning one. The Second Amendment’s function is to guarantee people with their right to bear arms is limited. There are lots of federal laws that prohibit the ownership of guns and other firearms. The concerns about this law under the Bill of Rights greatly contradict several federal laws which, in this case, continue to be a controversial issue. Since the belief of one individual to another is different, we have to understand why some of us desire to carry weapons while others do not. Whether you are in favor of carrying weapons or not, you should determine its influence on your society. And to protect its citizens, a country would make its government officials to often prohibit carrying illegal firearms.
You should know that obtaining firearm ownership legally conveys a personal thought of both defending and protecting yourself, keeping you safe from offensive attacks. Remember that self protection is the basic unit of national protection, but though you are enjoying this right, abuse is possible to break other laws. Thus, a sense of responsibly obeying underlying rules that makes up this law and a measure of self control must always be exercised.
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Gun Control, the Right to Self-Defense, and Reasonable Beneficence to All
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One of the strongest arguments against the implementation of gun control measures is that such measures violate the right to self-defense or security against attack. The argument, defended by Michael Huemer and others, claims that even if a particular gun control measure has good results overall, it infringes, in a manner which is prima facie seriously wrong, the rights of those who end up being killed or significantly harmed due to their resultant inability to defend themselves. We claim that uncertainty on the part of the government about who will be harmed by a particular gun control measure underwrites a strong response to this argument. If gun control measures save lives on balance, then they may increase each person's chance of remaining safe relative to the information available to the government, even if they will cause some people to be harmed who otherwise would not have been. We draw on Caspar Hare's arguments for the claim that there are no conflicts between morality and reasonable beneficence to contend that this fact would vindicate gun control policies.
Gun control involves, broadly speaking, state regulation of firearms. One important and much debated form of gun control involves preventing or making it harder for citizens, or certain groups of citizens, to obtain firearms, or certain kinds of firearms; when we speak of gun control, we will have this form in mind.  Such measures exist on a spectrum from more to less restrictive. For instance, a law making it illegal for children to buy sniper rifles is less restrictive than one making it illegal for any civilian to own any type of firearm. One of the strongest arguments against the implementation of fairly restrictive gun control measures involves the claim that such measures violate the right to self-defense, whose strength is itself derived from the very weighty right to physical security. The argument says that even if a particular gun control measure has good results overall, it infringes, in a manner which is prima facie seriously wrong, the rights of those who end up being killed or significantly harmed due to their resultant inability to defend themselves. We will argue that uncertainty on the part of the government about who will be harmed by a particular gun control measure underwrites a strong response to this argument. Our aim is not to provide a positive defense of any very restrictive gun control measure. For instance, it is compatible with our argument that such measures cost lives on balance, and are therefore inadvisable for consequentialist reasons. Our project is instead just to undermine the self-defense argument. Our aim is also not to evaluate the relative merits of different restrictive gun control measures, though our argument in Section 4 will imply that measures which avoid the self-defense objection will need to incorporate a certain exemption defended by David DeGrazia (2016), which is advisable on other grounds anyway.
A version of the argument is given by Michael Huemer, who claims that any very restrictive gun control measure can be justified only if it would save “many times as many lives as it cost” (2003: 317). This is supposed to be because such a policy violates the right of some to self-defense, and violating weighty rights is only justified when very great gains can be made by doing so. Similar arguments have been endorsed by (perhaps among others) Timothy Hall (2006), Deane Peter-Baker (2014), Timothy Hsiao (2015), and Lester H. Hunt (2016). We think our reasoning is applicable to all variants of the argument, but we will focus on Huemer’s formulation, because we think it is one of the argument’s more prominent and compelling statements. Meanwhile, Nicholas Dixon (2011) and Jeff McMahan (2012) claim that the argument fails. They say that gun control makes each person safer, and so promotes each person’s ability to remain safe from harm. Accordingly, no one’s right to physical security is infringed. Huemer (2016) shows that this response doesn’t work. Gun control may make people safer on average , but it does not make each person safer, and those who are made less safe are those who Huemer claims have their rights violated.
In this paper, we draw on recent work by Caspar Hare (2016) to show that, while Huemer’s response to Dixon and McMahan is correct, the argument from the right to self-defense nonetheless probably fails. What matters is whether each person’s expected security, given the knowledge available to the government, is increased by a gun control policy. Outside special circumstances (for which whatever provisions are feasible should be made), this means that a gun control policy need only make people safer on average in order to be justifiable from the perspective of protecting the right to security. Of course, there are other arguments against gun control—for instance, from the claim that it would actually backfire and increase crime, or from the autonomy of gun owners (Huemer 2003: §3; Hsiao 2015), or from the recreational value of guns (Huemer 2003: §4.1), or from the supposed role of public gun ownership in preventing tyranny (Wheeler 1999). But Huemer considers the self-defense argument the “main argument on the gun rights side” (2003: 306), and it is the one we will focus on.
In the next section, we survey Huemer’s argument, McMahan and Dixon’s objection, and Huemer’s response. In Section 3, we survey Caspar Hare’s argument that there are not conflicts between rational beneficence and morality. In Section 4, we apply this argument to the case of gun control, and state and respond to two objections.
2. Huemer’s Argument
Huemer focuses primarily on an extreme form of gun control—banning all privately owned guns. This is generally not what proponents of gun control in the United States have in mind, but Huemer thinks that “examining this proposal will enable us to develop the theoretical framework needed for evaluating less extreme forms of gun control” (2003: 304, fn. 14). Huemer goes on to claim that his argument also applies to proposals to ban handguns and concealed weapons, though in a somewhat attenuated form (because these proposals do not infringe the right to self-defense as significantly as would a total ban) (2003: §7). We will follow Huemer in taking a total ban as a starting place, with the caveat that similar reasoning might be applied to less restrictive gun control measures.
Huemer suggests that the bulk of the strength of the right to bear arms is derived from the right to self-defense. The right to bear arms is a so-called “means right,” significant largely because owning a gun is, in many circumstances, the most effective means of exercising the more fundamental right to self-defense (§§2.2 and 4.2). The right to self-defense itself is in turn “a derivative right, serving to protect the right to life among other rights” (2003: 307), such as the right against non-lethal assault. We will refer to this cluster of more fundamental rights under the label “the right to physical security.” This right to security is extremely weighty. Since the seriousness of the infringement of a derivative right is “proportional to the importance of the other right that it subserves” (2003: 301), and since the right to security is extremely important, infringements of the right to self-defense are extremely serious. So, in turn, are infringements of the right to own a gun, at least where such infringements constitute infringements of the right to self-defense.
Huemer illustrates this point with a series of examples. Holding someone down while someone else stabs them to death, thereby preventing them from defending themselves, is about as bad as directly murdering them, and is clearly much worse than just briefly holding someone down, taken on its own. Suppose now that instead of holding someone down, you grab their gun just as they attempt to defend themselves from a murderer, resulting in their being stabbed to death. That is clearly also very bad. But Huemer claims this is equivalent to what the government does in banning guns. The government will confiscate some weapons which people might have successfully used to defend themselves, resulting in those people falling prey to violent crime (2003: 306–308). 
Of course, the government does not know who will be prevented by a gun ban from successfully using firearms in self-defense. (Otherwise, all else equal, it could just let those people keep their weapons.) But Huemer claims that this is irrelevant. He asks us to consider the following case:
An “accomplice” ties up a family of five somewhere in the wilderness where he knows that wolves roam. He has good reason to believe that a pack of wolves will happen by and eat one or two of the family members (after which they will be satiated), but he doesn’t know which ones will be eaten. He leaves them for an hour, during which time the mother of the family is eaten by the wolves. (2003: 308–309)
Huemer correctly notes that “the fact that the accomplice did not know who would die as a result of his action does not mitigate his guilt,” and goes on to say that “likewise, it is unclear how the state’s inability to predict who will become the victims of its anti-gun policy would mitigate the state’s responsibility for their deaths or injury” (2003: 309).
The commonsense view is that a right cannot be infringed in order to prevent a small number of comparable rights infringements. For instance, to take a standard example, most people would say that a judge cannot order the execution of an innocent person in order to prevent a riot which would kill two or three other innocent people. If there is a point at which the judge could order the execution, it would only be when very many lives are at stake. The same goes for holding someone down as they are stabbed. And, Huemer thinks, the same likewise goes for confiscating guns. It is not enough to show that this would have good consequences; the consequences would need to be many times greater than the harms involved in the many severe rights infringements which confiscating the guns would require (2003: 317–318).
Nicholas Dixon (2011) and Jeff McMahan (2012) have given similar responses to this argument. McMahan writes that
Imposing a ban on guns, [gun advocates] argue, would be tantamount to taking a person’s gun from her just as someone is about to kill her. But this is a defective analogy. Although a prohibition would deprive people of one effective means of self-defense, it would also ensure that there would be far fewer occasions on which a gun would be useful or even necessary for self-defense. … Guns are only one means of self-defense, and self-defense is only one means of achieving security against attack. It is the right of security against attack that is fundamental. A policy that unavoidably deprives a person of one means of self-defense but on balance substantially reduces her vulnerability to attack is therefore respectful of the more fundamental right from which the right of self-defense is derived.
Dixon makes the same argument when he claims that a “[handgun] prohibition neither violates the right to self-defense nor sacrifices anyone’s interests for the common good, since it makes each person less likely to be murdered than the current permissive handgun laws” (2011: 151).
Huemer (2016) does not challenge McMahan’s claim that the weight of the right to self-defense is derived from the more general right to security; in fact, as we saw earlier, he endorses it. And we agree that at least most of the weight of the right is so derived. If someone acts in a manner that leaves you unable to defend yourself, but also removes any threats against which you might need to defend yourself, they have not thereby seriously infringed your right to self-defense. Presumably, what is of fundamental importance is remaining safe, and defending yourself is only one means to that. If anything, since using a gun in self-defense is often harrowing and traumatic, preventative measures seem superior to self-defensive ones, all else equal. 
Instead, Huemer points out that many particular individuals may be made less safe by a gun ban.  If someone faces a serious threat from violent crime, the threat may not go away if a gun ban is implemented, and a gun is a much better means of defense against that threat than anything else available, that person may be greatly endangered if guns are outlawed. As examples, Huemer asks us to consider a woman with an abusive, estranged husband, much stronger than her, whom she could only successfully repel with a gun, and a man who must walk home from work through gang territory. In these scenarios, if no one has a gun, the aggressor will win. Huemer then asks us to
suppose the woman with the violent husband turns up at a gun store. And suppose they send her away, because a new law has just been passed that says only government agents are allowed to buy guns. How is she made safer by this? I am not asking how society might be made safer. I am asking about that individual, who went to buy a gun to protect herself – she was not worried about gun violence in society, she was worried about her abusive husband. So how is she more secure?
She is not. And, as Huemer notes, these are “hardly outlandish scenarios.” Thus, it looks as if the physical safety of many particular individuals is undermined by a gun ban. So the Dixon/McMahan argument fails. Gun control may make people safer on average , but it does not make each person safer, and those individuals who are made less safe are those who Huemer claims have their rights violated. But while the Dixon/McMahan argument fails, perhaps something in the neighborhood works.
3. Wishing Well to All
Caspar Hare has recently given an argument against moral theories which claim that “sometimes it is wrong for you to act as you would if you were reasonable and moved solely by individual concern for each one of the people affected by your actions” and which thereby “generate conflicts between reasonable beneficence and morality” (2016: 451). The application of interest to us involves the famous Footbridge case, in which we must decide whether to push someone in front of a trolley in order to stop it and save five people. Primarily, we are interested in a variant Hare calls Footbridge with Suitcases , where, though we can push one to save five, we do not know who is on the footbridge and who is on the trolley track. This is because everyone is locked in suitcases, and we don’t know who is in which suitcase. If we push, the person on the footbridge will die, and the people on the tracks will be saved. Given the information available, pushing gives each person a ⅙ chance of death, and a ⅚ chance of survival. The opposite is true of not pushing. If we want to maximize each person’s chance of survival given our evidence, we should push. Any theory which claims we shouldn’t push therefore generates a conflict between morality and reasonable beneficence (2016: 454–455).
It may seem intuitively obvious that this is a problem. Hare also gives three arguments for the conclusion that it is. We will only briefly mention two of them, before focusing on the third. The first is from presumed consent : presumably, everybody involved would, quite reasonably, consent to your pushing the suitcase, if given the opportunity. This might be thought to justify pushing (2016: 457). The second, from dirty hands , relies on Hare’s earlier work (2013: ch. 3) on which preferences are demanded by “minimal decency.” It asserts that “if you willingly refrain from pushing and you are rational then you must prefer outcomes in which everybody, including you, is worse off over outcomes in which everybody, including you, is better off. But it is indecent to have preferences like that” (2016: 457). But the third argument, from composition , is the one which Hare stresses. The central idea is that in cases like Footbridge with Suitcases , pushing is morally equivalent to a series of actions, each of which you ought to perform, and that therefore you ought to push.
Suppose there are six suitcases, five on the tracks and one on the footbridge. By pushing the suitcase from the footbridge onto the trolley tracks, we can stop a runaway trolley from hitting the other five. Only one person is in one of the suitcases, and, sadly, we don’t know which suitcase it is. If we push, there is a ⅙ chance that we kill the person (who otherwise would have been fine), and a ⅚ chance that we save the person (who otherwise would have died). Both reasonable beneficence and morality suggest that we subjectively ought  to push. Of course, there is some chance that we will accidentally kill them, but this is also true of, say, surgeons who perform medical procedures (2016: 459). What matters is that pushing maximizes their chance of survival. Note that nothing seems importantly different if the probabilities are closer than ⅚ and ⅙; in fact, we think it is plausible that you should push even if there is only, say, a fifty-one percent chance that this saves them, and a forty-nine percent chance that it kills them. There doesn’t seem to be an argument of any appreciable strength from the person’s right to life or to physical security against pushing in such a situation, since, given your knowledge, pushing maximizes their chance of being saved. (If that doesn’t seem obvious, Hare, 2016: 460, asks you to imagine what you would do if it was your loved one in one of the suitcases. Wouldn’t you prioritize their chances of survival over things like avoiding being the cause of their death?)
Now consider Six Tracks (2016: 458). Suppose there are six tracks just like the one described above. For each track, one person is either in a suitcase on the track or a suitcase on the footbridge above the track. Five people are on the tracks, and one is on the footbridge. No one knows who is on the footbridge, or which track they are above. For each track, you must decide whether to push. This is an iterated version of the case in the previous paragraph. Just as you ought to push when there is only one track, it seems that, for each track, you ought to push. By Weak Agglomeration :
For any composite action A 1 …A n , if irrespective of whether you do A 2 through A n , you ought to do A 1 , and… and irrespective of whether you do A 1 …A n-1 , you ought to do A n , then you ought to do A 1 …A n . (2016: 460)
you therefore ought to push every suitcase on the footbridge, thereby killing one and saving five. Weak Agglomeration is necessary to rule out moral dilemmas, and is therefore very plausible. 
It might be claimed that whether you should push any given suitcase is not independent of whether you push the other ones. Maybe you should push one, but shouldn’t push so many that it becomes too likely that you kill somebody at some point or other. But this is implausible. Similar reasoning would apparently suggest that doctors who perform dangerous surgeries should retire before the likelihood that they cause the death of a patient at some point in their careers becomes too high. But no one thinks that (2016: 459). Also note that what seems to matter is the information available to the agent, whatever information is available to the patient. If the people in the suitcases know whether they are on the tracks or the footbridge but we do not, this doesn’t make any difference to whether we (subjectively) ought to push. As Hare (in the course of discussing a variant case which involves pressing buttons that move the suitcases, rather than pushing the suitcases directly) puts the point,
I say that, although you cannot anymore take solace in the thought that each one of them wants you to press, the argument from composition still applies. Ought you press, e.g., the ‘Move Alexia’ button? There’s a 5/6 chance that Alexia is thinking “Please, please, press that button – it will save my life and affect nobody else.” There’s a 1/6 chance that she is thinking “Please, please, don’t press that button – it will kill me and affect nobody else.” Pressing remains the thing to do. (2016: 466)
In this version of the case you can no longer be confident that each person would consent to your pushing (if they were offered the choice while possessing their evidence, rather than yours). But we agree with Hare that this does not seem to change what you ought to do. Suppose a doctor knows that there is a high chance that their patient will be saved if a certain medicine is administered, and a small chance that the medicine will cause a lethal allergic reaction where the patient might otherwise have lived. Suppose the doctor knows that the patient (who is unconscious, or unable to communicate for some other reason) knows whether they are allergic. Unless this latter piece of information itself provides some evidence as to whether the patient really is allergic, it does not seem to change the fact that the doctor ought to administer the medicine.
If there is an important difference between Six Tracks and Footbridge with Suitcases , it presumably has to do with the fact that the death of the one is a means to saving the five in the latter but not the former. To address this, Hare (2016: 461–463) gives a more convoluted variant of Six Tracks which seems morally analogous and in which the killing of the one causes the saving of the five. We agree that the variant is analogous, but it doesn’t really matter for our purposes. Outside odd cases, taking guns from law-abiding citizens who might use them in self-defense is not a means to whatever benefits are achieved through gun control. (If we knew that these people would wind up using their guns in self-defense, and wouldn’t do anything bad with them, we would just let them keep their guns.) All we need is the claim that you should push all the suitcases in Six Tracks .
We find it plausible that you ought to push in Six Tracks and Footbridge with Suitcases even if you should not push in the original Footbridge case (where you know the identity of the person on the bridge). This reveals that uncertainty about who will be harmed by an act may affect the permissibility of an act. Specifically, it is commonly thought that one has more reason to avoid killing than to avoid allowing a killing, or to avoid infringing a right than to avoid allowing a right to be infringed, or to avoid causing harm than to avoid allowing harm to occur. But cases like Six Tracks and Footbridge with Suitcases seem to show that these considerations do not have much (if any) force when making choices in particular circumstances of uncertainty—namely, those where killing (or whatever other action is in question) promotes the safety, given your evidence, of everyone, including the person killed.
Though we agree with thrust of Hare’s argument, we will qualify it in one important way. Hare ultimately frames his argument in welfarist terms: there is no conflict between morality and beneficence , what is expectedly best for everyone. But we are open to the view that we can have reasons to care about things besides our own welfare, which are nonetheless the right type of reasons to ground obligations to us. These reasons are, in Scanlon’s (1998: 219) terminology, “personal reasons,” reasons which “have to do with the claims and status of individuals in certain positions” even if not with those individuals’ well-being. For instance, perhaps we have reasons to care about being treated fairly (1998: 212–213), or being allowed to pursue our own projects (Huemer 2003: 300–301), apart from the effect of these things have on our welfare. So perhaps there is no conflict between morality and concern for the things each individual has personal reason to care about, but there may nonetheless be one between morality and beneficence , if personal reasons outstrip welfarist ones. In light of this, instead of Hare’s general claim about beneficence, the specific lesson we wish to draw from Six Tracks is this: the individual right to physical security is generally  not violated by performing an action which maximizes each person’s expected safety.  (As we discuss in Section 4.1, this is a specific version of a more general principle which we also endorse, and which can be defended by a somewhat similar case we call Gun Switching ). To the extent that the weight of the right to self-defense is derived from the weight of the right to physical security, performing the action in question will not violate the right to self-defense any more than it violates the right to physical security. And we suggested above, and Huemer seemed to agree, that at least the vast bulk of that weight is so derived.
4. Application to Gun Control
Suppose a comprehensive gun ban will prevent more violent crime than it causes, thereby making most people safer, but that people in circumstances like those Huemer describes will be made less safe. Under these conditions, what is the best way to respect the right to physical security? Suppose the government can reliably recognize those competent, law-abiding citizens who need guns for security reasons like those Huemer describes. Even staunch gun control advocates might agree, whether for consequentialist or rights-based reasons, that exceptions should be made for these people. So, for instance, David DeGrazia argues that handguns should be restricted to people who demonstrate a special self-defense related reason for owning guns which means that they “cannot prudently delegate their right to fight off intruders to the police” (2016: 72) and who “pass a demanding, in-depth, federally approved course in handgun safety” (2016: 74). DeGrazia cites (2016: 74) as people who might have a special need for a gun those who live in unsafe neighborhoods or live in isolated areas with a slow police response time. Presumably, Huemer’s person with the violent, estranged spouse would also qualify. DeGrazia’s preferred policy would constitute a “restrictive licensing” system similar to that found in Canada, where people can own handguns only upon demonstrating a special self-defense related need for them, or meeting one of several other conditions (see Vernick, Hodge, & Webster 2007 for a positive evaluation of this system). If the government could identify such people with perfect accuracy, then Huemer’s argument against a total gun ban might succeed, but would be ineffective against this other, still very restrictive, gun control policy.
But suppose that, for whatever reason, many people who have such a special need will be unable or unwilling to demonstrate this to the government. (Someone’s testimony that they need a gun, all on its own, would likely provide little evidence that they have such a special need, since many people would falsely claim that they have one, either due to being mistaken about the danger they face or due to being willing to lie to get a gun. So more than mere testimony would be needed, if the licensing system is to serve any purpose.) People with such a special need may be put at greater risk under a restrictive licensing system than they would be under a more permissive gun policy, even if the average person is made safer. In that case, we claim that the government is in a position similar to that of the agent in Six Tracks , and those who are denied guns are similar to those in the suitcases. The government will harm some of those people if the policy is implemented, but it does not know whom, and given the information available to it, each affected person’s chance of remaining safe is increased by the policy. Insofar as we aim to maximize each person’s chance of remaining safe, then, we should implement the gun control policy (or some other policy that makes everyone even safer, if there is one). And therefore, ceteris paribus , we should implement it (or some other, better policy,) just as we should push each suitcase in Six Tracks . There is no requirement that “many, many times” as much good be done as harm. (We discuss two important potential dis analogies with Six Tracks below).
We can see, then, why gun control may be like Six Tracks : uncertainty about who will be harmed may mean that each person’s chance of survival is maximized by taking the paradigmatically consequentialist course of action. This is not true in Huemer’s wolf case, where respect for each individual’s safety demands that no one be left out for the wolves. Accordingly, the fact that uncertainty makes no difference in the wolf case doesn’t mean it makes no difference to Six Tracks —or, for that matter, to gun control.
4.1. First Objection
Here is an objection: Six Tracks decomposes into a series of pushes, each of which maximizes the chance of survival of the person involved without affecting anyone else. A restrictive licensing system decomposes into a series of what we might call “gun denials”—either preventing someone from buying a gun or (in the most extreme versions of such a system) confiscating a gun they already own. But for the most part, people aren’t at risk of violence due to their having a gun, but due, if anything, to the fact that other people have guns. So each gun denial makes the person being denied less safe, by depriving them of a means of self-defense, in order to make others safer. What would actually maximize the safety of any given person to whom we deny guns is denying guns to everyone else , while allowing them to have whatever guns they wanted. So no actual act of gun denial is beneficent towards the person most affected by it—namely, the person denied a gun—and, in fact, there is no course of action which maximizes every person’s safety. This may be an important disanalogy between gun control and cases like Six Tracks : it seems to show that the special kind of uncertainty present in the cases Hare describes isn’t present in the gun control case after all.
There are roughly two ways to respond to this. One admits the disanalogy with Six Tracks. However, it claims that, while the gun control policy does require performing individual actions which make particular individuals less safe, it nonetheless does not violate the right to security because these actions are parts of broader courses of action which maximize each individual’s chance of safety among those courses of action which aren’t otherwise impermissible. The other denies the disanalogy altogether, instead arguing that even the individual act of gun denial does maximize the safety of the person being denied a gun. We will consider two ways of defending this latter claim. We take each type of response in turn.
Here is the first type of response. It grants the disanalogy with the cases Hare discusses, but argues that it is not ultimately important, so that the pro-gun control argument still goes through. Six Tracks seems to show that the right to security is not violated by taking an action which maximizes everyone’s chance of survival, even if this will in fact kill some people. The claim here would be that the right to security is not violated by taking a course of action which, out of those courses which are not otherwise impermissible , maximizes everyone’s safety. Six Tracks also meets this description, but on this view, it is a kind of special instance falling under a more general principle: being composed of actions which maximize everyone’s safety is one way to fulfill this criterion, but not the only one. Consider:
Gun Switching : Abby and Bob are each under unjust assault. Trolley A contains a shotgun which it is about to deliver to Abby, and Trolley B contains a sniper rifle which it is about to deliver to Bob. The sniper rifle is better against distant opponents, while the shotgun is better against nearby opponents. Abby’s opponents are mostly distant; with just the shotgun (which is what she’ll get if we do nothing), she has a 25% chance of survival, while, with just the rifle, she has a 75% chance of survival. Bob’s situation is reversed: with just the rifle (which he’ll get if we do nothing), he has a 25% chance of survival, while with just the shotgun, he has a 75% chance of survival. If either person had both guns, they would have a 90% chance of survival, and the other person would only have a 5% chance. We can move the shotgun to Trolley B instead, so Bob gets it, and can move the sniper rifle to Trolley A, so Abby gets it. We can do both of these actions (giving each person a 75% chance of survival), neither (leaving each person with a 25% chance of survival), or just one (so one person gets both guns, giving them a 90% chance but the other only a 5% chance). There is some chance that doing both will result in the death of someone who would have survived had we done neither (e.g., though Abby having the rifle rather than the shotgun makes her safer relative to our evidence, it might be that lacking the shotgun will result in her death where she otherwise would have survived).
Here, it seems clear to us that we ought to switch both guns, giving Abby the rifle and Bob the shotgun, and thereby increasing the odds of survival for each to 75%. It also seems clear that if the case is iterated, we ought to keep switching, even if this is statistically certain to eventually cause the deaths of some people who would have survived had we done nothing. This is true even though switching requires performing an individual action which makes each person less safe (Abby is made less safe by moving the shotgun to Trolley B, while Bob is made less safe by the other action). So it seems that what matters is whether a whole course of action maximizes each person’s safety, not whether each individual action does.
Suppose Abby still complains that our switching the guns violates her right to self-defense. After all, while our course of action made her safer than if we’d done nothing, it didn’t maximize her safety, since there was another course of action—giving her both guns—which would have made her safer still. The problem with Abby’s complaint is that this alternative course of action seems impermissible on other grounds: for instance, it seems clearly unfair to Bob to give Abby his gun but not the reverse. In determining whether a course of action demonstrates adequate concern for each person’s security by maximizing their chance of survival, it makes sense to exclude courses which are impermissible on other grounds. By way of analogy, suppose you could save all six people in Six Tracks without pushing, but only by killing one hundred others. Pushing is still the act that demonstrates adequate concern towards each of the six when we restrict your options to those that are not otherwise impermissible. Thus, pushing is still permissible.
We can see the application to gun control. Suppose you’d be safest if the government took guns from everyone except you. It’s not even clear that the government could do this; it might be politically infeasible. But suppose it could. It seems independently wrong for the government to arbitrarily privilege you in this way, denying guns to others to make you safer, while refusing to do the reverse. Of course, there may be other courses of action which would also make you safer than the gun control policy (i.e., denying guns to everyone except you and one other person, etc.) But these face the same problem. So, though taking your gun does make you less safe, and though there are other courses of action which would make you safer, taking your gun is part of the course of action which makes you safest without being otherwise impermissible. So, we claim, it doesn’t violate your right to security, or your derived right to self-defense.
An alternate response involves denying the disanalogy with Six Tracks altogether and arguing that denying you a gun does make you safer, relative to the government’s evidence. We will consider two ways of defending this. The first appeals to the risk of suicide. In the United States, there are far more firearm suicides than homicides of any sort (CDC 2016a; 2016b). And there are reasons to think that many of those who die from suicide would not, if not for the availability of firearms. Suicide rates are higher in areas with high rates of gun ownership, and the correlation remains even after potential confounders are controlled for through statistical regression; by one estimate (Briggs & Tabarrok 2014), the suicide rate increases by between .5 and .9% for each percentage point increase in household gun ownership rates. And there is a compelling explanation of this. First, suicide by gun is easy to carry out, assuming a gun is available—all one must do is pull a trigger. And suicide is often an extremely impulsive act (in one study, Deisenhammer et al. 2009, nearly half of people who survived a suicide attempt reported spending less than ten minutes considering the attempt immediately before making it). Accordingly, the more time and effort someone must go to in order to attempt suicide, the more likely they are to change their mind. Second, firearms are several times as lethal as other commonly used suicide methods (Shenassa, Catlin, & Buka 2003). Research suggests that the vast majority of people who attempt suicide once and survive do not ultimately die by suicide, with most never even attempting suicide again (e.g., O’Donnell, Arthur, & Farmer 1994; Owens, Horrocks, & House 2002; Suominen et al. 2004). Accordingly, the lethality of one’s attempted suicide method is a major determinant of whether one ultimately dies by suicide. Though complicated empirical questions are involved, it would not be surprising if the reduced risk of death by suicide due to a gun denial outweighed any increased risk of crime victimization for very many people, relative to the information available to the government.
On the matter of suicide, Huemer writes that
it is doubtful that the restriction of gun ownership for the purpose of preventing suicides would fall within the prerogatives of a liberal state, even if such a policy would be effective. One cause for doubt is that such policies infringe upon the rights of gun-owners (both the suicidal ones and the non-suicidal majority) without protecting anyone else’s rights. Another cause for doubt, from a utilitarian perspective, is that one cannot assume that individuals who decide to kill themselves have overall happy or pleasant lives; therefore, one should not assume that the prevention of suicide, through means other than improving would-be victims’ level of happiness, increases utility, rather than decreasing it. (2003: 311)
Regarding the rights claim, Huemer cites Todd Hughes and Lester Hunt, who write that restricting guns in order to prevent suicide is “clearly paternalistic. Suicide belongs, if anything does, to the private domain that is protected even by the minimal interpretation of the autonomy constraint [which liberal governments should obey]” (2000: 13). But it is plausible that many suicides are not autonomous, considered choices which must be respected, but are instead the result of mental illness or of being overwhelmed by circumstances. (Outside of special circumstances, very few of us think that interfering with a suicide attempt is usually prima facie seriously wrong in the way that interfering with important, autonomous choices which someone makes about their own life generally is.) If suicide is better thought of as a mental health issue than an autonomous choice, then it becomes less clear that those who may attempt suicide do not have a positive right (similar to the right to healthcare which some people believe we have) to have steps taken to reduce their risk of death. As for the utilitarian argument, suicide is often a response to temporary problems which can ultimately be overcome; recall that the vast majority of those who survive a first suicide attempt do not ultimately die by suicide. It seems plausible that most cases of suicide are not what is best for the person involved. (Presumably, this is another part of why we think it’s usually fine to interfere with suicide attempts.) So we reject this argument.
A separate way of arguing that gun denials increase the safety of those denied guns involves Hare’s (2016: §6) account of what it takes to know which people will be harmed by an action. Suppose that in Six Tracks , you say “Let ‘Bridgey’ refer to the person I will kill if I push all the suitcases.” It is plausible that you successfully baptize that person with the name “Bridgey.” You then know that Bridgey is the person who will be killed if you push all the suitcases. However, it does not seem plausible that knowing this stupid fact could make any difference to whether you ought to push. So either it doesn’t matter at all whether you know who will be harmed, or else “knowing who will be harmed,” in the relevant sense , requires something more than simply knowing a proper name for the person who will be harmed.
Hare (2016: §6) prefers the second option. Knowing who your victim will be, in the relevant sense, involves knowing some of the various details which make them importantly different from other people. These involve things like the fact that they do funny impressions, that they have a son or an unfinished sonata (2016: 467), that they are good at writing balladic poetry and that their mom called them “Bugaboo” (2016: 469), and so on. These are important because once one has enough information like this, one has incommensurable reasons for action (e.g., that pushing all the suitcases will save the most lives and will allow someone to keep doing funny impressions for their friends, while refraining will return a father to his son and allow someone to finish their sonata). Once one’s reasons are incommensurable, it is no longer the case that one should push, though Hare thinks one is still permitted to. 
However, the government does not know anything about most individuals, apart from some very general demographic facts. For instance, a certain agency may have on record that there is someone named Bob Smith, that he lives in Millersburg, Missouri, that he is forty-eight years old and made fifty-one thousand dollars last year, and so on. These facts may provide the government with special reasons for action in certain cases—for instance, when administering some program which is justifiably aimed at benefiting members of a certain demographic group. But at least under normal circumstances, it is not clear that this sort of information will provide any reason to exempt Bob Smith from a gun ban.
Perhaps the government even knows facts such as “Bob Smith is a parent.” This fact might seem to be a better candidate for providing incommensurable reasons for action. However, since other parents may be endangered by exempting Bob from a gun policy, it is plausible that the reason his being a father provides for exempting him is countered by commensurable reasons pushing in the other direction. Perhaps incommensurable reasons would only arise if the specific details which make Bob’s relationship with his children unique were known. But the government doesn’t know those details, so the government may not have the right kind of information regarding Bob needed to generate incommensurable reasons.
On Hare’s view, the government may not have the right kind of information for trading off risks between Bob and others to provide it with incommensurable reasons. It may then be that, in the relevant sense—the sense in which I don’t know who Bridgey is—the government does not know to whom it is denying a gun when it denies a gun to Bob Smith, since it does not know who Bob Smith is. Each individual act of gun denial might then maximize each person’s safety, even if it made the person being denied a gun less safe, because, in the relevant sense, the government would not know who was being denied a gun.
Of course, certain agents within the government will have special information about people they know: a member of the Bureau of Alcohol, Tobacco, Firearms, and Explosives may know something totally unique about their child. Most of the time, these agents won’t be in a position to ensure the passage of a gun ban that makes an exception of the people they know. But even if they are, it is plausible that considerations about avoiding cronyism mean they shouldn’t act on this information in official contexts. For instance, most of us think it would be wrong for a president to use their power to provide special benefits to people they know, even if they have reason to privilege these people when acting as a private citizen. So this does not undermine this line of response.
4.2. Second Objection
Here is a second objection: one of Hare’s arguments was from “presumed consent.” But we know that many gun owners would not, in fact, consent. This undermines that argument. Further, perhaps it calls into question whether we can apply Six Tracks type reasoning to the gun control case. For instance, one could attempt to argue that gun owners who refuse to consent to the gun control policy are willing to waive their rights against the risks associated with a libertarian gun policy, but not against the risks associated with gun control. Perhaps it would then be illegitimate to argue that can respect their rights by appealing to the former risks to justify imposing the latter risks.
In responding to this objection, we should distinguish between two groups within the population of people who would not consent to a gun control policy, and would be denied guns (or guns of some certain sort) under it: those who would be made safer by the policy, and those who would be put at greater danger. Consider the former group first. These people may have other reasons for opposing gun control besides wanting guns for self-defense—for instance, they may want certain guns for recreational purposes. Since we are concerned only with the extent to which the right to physical security supports the right to bear arms, we will set these other reasons aside in this paper. To the extent that people refuse to consent to gun control for reasons of personal safety even though it would make them safer, they would seem to be misinformed or irrational. What is the normative status of their refusal to consent in light of this?
One view would be that what fundamentally matters in such a situation is what one’s rational, fully informed self would want done in the relevant circumstances, where the “relevant circumstances” are taken to include one’s actual lack of consent (see Parfit 2011: 191–200 for discussion of this view). Unless being denied a gun against one’s will is an extremely heavy cost, it seems that if a gun control policy maximizes one’s safety, and if one’s reason for wanting a gun is personal safety, then one’s rational, fully informed counterpart would, so far as one’s own interests were concerned, want the gun control policy implemented, even over one’s actual objections to it. In this case, an argument from presumed consent would fail, but an analogous argument from hypothetical consent would succeed.
But suppose this isn’t right, and what fundamentally matters is just actual consent or refusal. Setting aside worries about mental competence like those discussed in connection to suicide in the last section, if denying you a gun was primarily meant to keep you safe, perhaps your refusal to consent would be a very strong reason not to deny you a gun. Perhaps , for instance, you shouldn’t push a suitcase onto the track in Six Tracks if you know that the person on that track, for some strange reason, irrationally wants you not to. But remember, from the last subsection, that if gun control makes person safer from crime, it makes each person safer primarily by denying guns to others, and the government probably must apply gun regulations to everyone equally without making arbitrary exceptions for any one person. The question is then whether some people, by misguidedly refusing to consent to a gun control policy, can veto it, thereby imposing a greater risk on others. And the most plausible answer is that they can’t. Consider a variant of Six Tracks in which we must push all the suitcases or none of them (perhaps, to consider a version found in Hare, 2016: 463, we must either push a button which will cause all six suitcases to be pushed, or do nothing). Suppose we knew that some of the people in the suitcases would irrationally refuse to consent to our pushing the button, despite the fact that it both saved the most lives and maximized their own chance of survival. In that case, it seems that we ought to push, even over their objection. We should not let their irrationality or ignorance endanger others.
The harder cases deal with those competent, law-abiding citizens who refuse to consent and who know that they will be made substantially less safe by the policy. When a course of action is impersonally best but will make one much worse off, it’s plausible that one could often either rationally consent to it or rationally refuse to consent (see Parfit 2011: 131–149 and 182-189). Accordingly, we cannot dismiss these people as irrational or ill-informed, as with the previous group. Hopefully, there will not be many such people. But even those there are do not pose a threat to our argument.
We claim that these cases are analogous to versions of Six Tracks where the people know which suitcase they are in but cannot share this information with us. The government knows that some people will reasonably refuse to consent to a policy that denies them guns, since it will render them less safe, even though it renders most people more safe. To the extent that the government can identify these people, we have suggested that they ought to be allowed guns, absent overriding reason to the contrary. But there are (we’re supposing) some such people who the government cannot identify. They would like to have guns but cannot differentiate themselves from people who don’t have a special defense-related need for them. In this case, assuming that people who can’t demonstrate such a special need are, on average, made safer by the policy, a concern for protecting each individual’s safety would seem to support implementing the policy. After all, to echo Hare, there is some chance that each person is thinking “Please, please, don’t deny me a gun,” but a greater chance that they are (or should be) thinking “Please, please, implement that policy.” They may know they will be made less safe, but if the government does not have good evidence for this—and we’re supposing it doesn’t—this doesn’t change what the government subjectively ought to do, anymore than in the case involving a doctor who knows their patient knows whether they are allergic, but still doesn’t know whether they are. 
Thanks to Ben Bronner, Minji Jang, Jonathan Mahoney, Jesse Spafford, audiences at the Central APA and RoME, and two anonymous referees for helpful comments.
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A referee asks whether all greater good promoting policies can be justified by our style of argument. Is there something special that separates the gun control issue from at least some other greater good promoting policies, or does the argument generalize without exception? If the argument does generalize without exception, our account might seem to have implausible implications. For instance, someone might think that, if parallel reasoning also licenses the government subjecting one hundred people to involuntary and inevitably lethal medical experiments in order to prevent one hundred and one deaths from disease, this would be a reason to reject our argument. We can’t fully explore this issue here, but we will note that it isn’t obvious that the argument generalizes in this way. For instance, suppose the rich have a right to a certain percentage of their income. And suppose that taxing some of this income (to which they have a right) would promote the greater good by benefiting the poor, but the rich would be left worse off. It seems clear that, if the government knows who the rich are, then the government is not acting in their expected best interests by implementing the tax. So, in order to defend this tax policy via our style of argument, one would have to lean on the claim that the government does not know who the rich are. In contrast, as we saw in Section 4.2, there are at least two other strategies available for proponents of gun control. Further, as we briefly noted in Section 4.2, there may be cases in which certain demographic characteristics do provide the government with special reasons for action. For instance, maybe the government has special reason to avoid implementing policies which disproportionately harm racial minorities. In that case, knowing that racial minorities would be the ones harmed by a greater-good promoting economic policy might itself be enough for the government to know who, in the relevant sense, is being harmed, even if it doesn’t know who, in the relevant sense, is being harmed in the gun control case.
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As the country reels from a pair of devastating mass shootings, the gun lobby has doubled down on the notion that “a good guy with a gun” is the only thing that can stop “a bad guy with a gun.” That maxim is central to the National Rifle Association’s decades-long mission to relax gun laws and increase gun sales. Right-leaning media outlets have amplified that message in recent years by reporting that instances of self-defense by law-abiding owners actually outnumber gun crimes.
But is it true?
A reader asks, Are there more instances of defensive gun use than gun crimes, and where does the claim come from?
The reality is that estimates of defensive gun use are so squishy that the Centers for Disease Control and Prevention in May removed all figures from its website. But below we do our best to separate fact from fiction.
What is defensive gun use?
It’s typically defined as using a firearm to protect yourself, your family, or other people from a crime. The gun could be fired or simply brandished. Examples include shooting an attacker in mid-assault or displaying a gun to discourage a burglar.
How many instances of defensive gun use are there each year?
The number of DGUs, as these incidents are commonly known, is hard to pin down. Law enforcement agencies don’t typically classify DGUs as a standalone category. The FBI tracks justifiable homicides, but states aren’t required to submit those figures, so the data is incomplete. And the FBI figures omit defensive assaults, in which someone fights off an attack, and brandishings.
This ambiguity has opened the door to a fierce debate between gun violence researchers and pro-gun advocates, who tend to cite different sets of data. Academics largely rely on the National Crime Victimization Survey (NCVS), a twice-yearly poll of crime victims conducted by the federal government, while gun rights activists point to a series of telephone surveys conducted in the early 1990s by a criminologist and self-described “gun control skeptic” named Gary Kleck.
The NCVS identifies far fewer instances of defensive gun use. According to the most recent firearms violence report , published in April, 2 percent of victims of nonfatal violent crime — that includes rape, sexual assault, robbery, and aggravated assault — and 1 percent of property crime victims use guns in self-defense. According to the survey, firearms were used defensively in 166,900 nonfatal violent crimes between 2014 and 2018, which works out to an average of 33,380 per year. Over the same period, defensive gun use was reported in 183,300 property crimes, or an average of 36,660 per year.
Taken together, that’s 70,040 instances of defensive gun use per year.
Notably, the NCVS figure excludes cases of simple assault. There are other caveats: Survey respondents are only asked about defensive measures if they report being victims of certain crimes, including rape, assault, burglary, larceny, and car theft. That means victims of trespassing and commercial crimes are not given the opportunity to report defensive gun use. And respondents aren’t asked directly about guns — they’re asked what they did to protect themselves or their property; it’s up to them to supply specifics.
More than 20 years ago, Kleck, who taught at Florida State University, reported a far higher figure, 2.5 million, and that’s been embraced by gun activists. In 1993, Kleck and his colleague Marc Gertz surveyed 5,000 adults and asked if they or their household members had used a gun for self-defense in the past five years, even if it wasn’t fired. Just over 1 percent of respondents said they did. In their National Self-Defense Survey , published in 1995, Kleck and Gertz extrapolated that figure to the entire adult population of 200 million, concluding that Americans use guns for self-defense as often as 2.1 to 2.5 million times a year.
Researchers have found several issues with Kleck’s estimates. While the adult population in the United States in 1993 was around 200 million people, not all of them owned guns — only about 42 percent did. So extrapolating the survey results to the entire adult population yields an overestimate. David Hemenway, director of the Harvard Injury Control Research Center, who first addressed “extreme overestimates” of DGUs 25 years ago, pointed out problems with Kleck’s math in 1997 :
Guns were reportedly used by defenders for self-defense in approximately 845,000 burglaries. From sophisticated victimization surveys, however, we know that there were fewer than six million burglaries in the year of the survey and in only 22 percent of those cases was someone certainly at home (1.3 million burglaries). Since only 42 percent of U.S. households own firearms, and since the victims in two thirds of the occupied dwellings were asleep, the 2.5 million figure requires us to believe that burglary victims use their guns in self-defense more than 100 percent of the time.
Telephone surveys tend to yield high estimates for other reasons, Hemenway says. When it comes to quantifying rare events, even a small amount of misrepresentation on the part of the respondents can skew the results. People sometimes exaggerate when the action they’re describing, like fending off an attacker, is commendable or paints them in a heroic light, a phenomenon known as “social desirability bias.” That alone wouldn’t be enough to yield an overestimate, Hemenway said, but it does when measuring a rare event. “The search for a ‘needle in a haystack’ has major methodological dangers, especially where researchers try to extrapolate the findings to society as a whole,” he wrote in 1997 .
Hemenway says that respondents might also “telescope,” or describe an event that’s outside the time frame that’s being asked about. And crime victims can also misremember traumatic events. Researchers consider the NCVS to be more reliable than randomized telephone surveys because respondents are asked screening questions that help weed out false reports, something that typically isn’t done with telephone polling.
Kleck, who is now retired, argues that respondents underreport DGUs because they fear the authorities. In some states, pointing a weapon at someone can lead to an arrest. Even if they’re eventually cleared, “you’ve lost thousands of dollars in legal fees, had your reputation ruined, maybe had your picture and name and the newspaper,” he said. The NCVS is confidential, but some gun owners may not trust that their answers won’t be passed on to the authorities, Kleck says. “They’re really unlikely to put themselves in legal peril by reporting that they wielded a deadly weapon, and pointed it at another human being. It’s a lot easier for people to report ‘I was a crime victim,’ period.”
Hemenway says that he’s never heard of a criminal case arising from the National Crime Victimization Survey. Ultimately, he says, most defensive gun uses happen during arguments, when tempers flare and guns are nearby.
Some researchers find fault with both the low- and the high-end estimates. The RAND Corporation found the 2.5 million DGUs per year was “not plausible,” given more “trustworthy” sources like the NCVS. But RAND also said the government’s DGU figures are likely an underestimate. “The fundamental issues of how to define DGU and what method for obtaining and assessing those measurements is the most unbiased have not been resolved,” RAND researchers wrote, and encouraged further research.
Are there any real-time stats for defensive gun use?
Yes, but there are caveats.
Gun Violence Archive, the Kentucky-based nonprofit that tallies gun-related incidents in near-real time, also counts DGUs. But it only captures incidents that make the news or are reported to police. And GVA includes incidents involving illegal gun possessors as well as legal owners, including shootouts as well as stand-your-ground shootings. GVA recorded 8,394 DGUs from 2017 to 2021, which works out to an average of 1,678 a year. But that’s likely a massive undercount.
The Heritage Foundation, a conservative think tank, launched a DGU tracker in 2019 that relies on media reports, but counts only defensive gun use by lawful owners. Heritage tallied 2,106 shootings from 2019 to 2021, for an average of 702 per year. The group cautions that it’s “not intended to be comprehensive” because “most defensive gun uses are never reported to law enforcement, much less picked up by local or national media outlets.” That’s a common belief among pro-gun advocates, some of whom believe the 2.5 million figure is, in fact, too low.
There’s no way of proving if DGUs are underreported to police. But according to the National Crime Victimization Survey, nearly 70 percent of nonfatal firearm violence is reported to the authorities.
How many gun crimes are there each year?
The NCVS’s most recent firearm violence report tallied 14,000 gun homicides and 470,800 incidents of nonfatal firearm violence — which includes armed sexual assault, robbery, and aggravated assault — among people 12 and older in 2018. That adds up to 484,800 gun crimes.
Are there more instances of defensive gun use than gun crimes?
No. If we’re going by NCVS data, DGUs do not outnumber gun crimes. There are seven times as many gun crimes (484,800) as there are instances of defensive gun use (70,040) each year, according to the survey.
Leading researchers back that up. The Harvard Injury Control Center has found that guns are used far more often to intimidate others than in self-defense.
If most academics go by the crime victim survey data, why do the higher DGU estimates persist?
Because they’ve been repeatedly amplified by the gun lobby , mainstream media outlets , and even the the Centers for Disease Control and Prevention. For years, the CDC cited DGU estimates from both the NCVS and Kleck’s surveys, saying that estimates range from “60,000 to 2.5 million defensive gun uses each year,” and linking to a 2013 report from the National Academies of Sciences, Engineering, and Medicine that cites Kleck.
But that changed last month, when the CDC removed those figures and replaced them with more general language:
Estimates of defensive gun use vary depending on the questions asked, populations studied, timeframe, and other factors related to study design. Given the wide variability in estimates, additional research is necessary to understand defensive gun use prevalence, frequency, circumstances, and outcomes.
The edits followed months of lobbying by a group of researchers that included Mark Bryant, who leads Gun Violence Archive , and Devin Hughes, who runs GVPedia , a nonprofit gun violence research outfit (Hughes is a former Trace contributor ). Mainstream media outlets have also begun re-evaluating the 2.5 million figure. But the belief among Americans that guns are a tool for self-defense is a persistent one , regardless of what the data says. And it remains the centerpiece of the NRA’s strategy, according to internal documents recently unearthed by my colleague Will Van Sant.
“We know from repeated research that the vast majority of Americans agree that law-abiding people have the right to defend themselves and their families with the firearm of their choosing,” the NRA’s research director wrote in a January 2021 memo to board members. “This is why no matter the policy, our messaging continues to focus on self-defense.”
Defensive gun use, Hemenway said, “is the linchpin of almost all the arguments about having a gun.”
Another reason DGU overestimates are repeated across decades is because most studies on the topic are more than 20 years old. In interviews, both Kleck and Hemenway say they consider the science to be settled. Kleck hasn’t repeated his telephone survey in nearly 30 years, while Hemenway points to the NCVS as a current barometer of defensive gun use. But both men concede that the true number of DGUs will probably never be known.
“What we do know for sure,” Hemenway said, “is that having a gun in your house increases suicides, it increases gun accidents, and it increases homicides, at least of women in the house. And we can’t find any benefit from it.”
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In Protection Of Self-Defense Argumentative Essay Examples
Type of paper: Argumentative Essay
Topic: Government , Criminal Justice , Violence , Crime , Police , Human , Social Issues , Law
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In various debates, individual's position about a certain issue depends on personal experience with the subject of debate or most likely lack of one. In this context, debate concerning bearing arms will be discussed. The aim of this essay is to explain why the right of bearing arms is essential for human rights support and why this right should be protected. The main arguments used are supported by the article of Wheeler Samuel.
Key words: bearing arms, violence, human rights, self-defense, government.
In Protection of Self-Defense
In various debates, individual's position concerning a specific issue depends greatly on personal experience with the debated subject or most likely lack of one. In this context, people who have never experienced an assault or have never been to New York and big cities of the United States are likely to consider that the right to bear arms is harmful for society and their safety on streets. On the other hand, position concerning certain matters might depend on a person's character and self-perception. In this context, an individual might be likely to suggest that he/she has a right for self-defense and how that person was prepared for the self-defense is his/hers personal matter, which should be protected by the constitution. In the framework of these considerations, the aim of this essay is to show why the right of bearing arms is crucial for the support of human rights and why this right should be protected. The main arguments used in this essay are based on the article by Wheeler Samuel.
First of all, irrespective of diverse aspects of human life, which are protected by government in the framework of human rights, there is no government which can predict and this prevent unlawful violation of these rights and eliminate existence violence and crime. Thus, government cannot be always there to fulfill its obligations within the "social contract" with people. In other words, "the right not to be unjustly assaulted qualifies as a 'human right'" (Wheeler, 2001, p.19). Until a certain extent, if a government is not capable of preventing one's death or significant injury of one's health, it should be done by an individual himself. Anyone would agree that such argument is rationale and appropriate for any debate. On the other hand, when bearing arms is mentioned, their opinions change.
The justification for bearing arms is based on the same logical assumptions. Looking at the issue from the point of self-protection and no intention of causing harm to anyone else willingly and on purpose, the rationale of bearing arms is in an individual's desire to survive and live according to the natural laws which were not given nor provided by government or society. Thus, it is an instinctual matter of the human psyche to protect oneself from injury, and firearms are simply an instrument of defense. Wheeler comments on this subject in the following way:
"The core "self-defense" argument for right to bear arms derives from a fundamental right to preserve oneself from harm, conjoined with empirical facts about technology, the reliability of police protection, and reasonably expected threats" (Wheeler, 2001, p.20).
Another substantial argument is that most of cons of bearing arms are situational. They cannot overcome a crucial individual right of self-defense. For instance, the argument that bearing arms might result in more violence than lack of it is based on a situation when a victim in possession of gun might not be able to use it properly or be overwhelmed by emotions and use it under states effect. This case is quite situational and, in fact, such cases are possible, but they do not refer to the essence of arms bearing, but rather to initial psychological verification of person's psychological stability and tendency to use violence in general. Inclination of some people to overreact or have criminal inclinations has nothing to do with giving other people an opportunity and means for self-defense.
Another argument is that banning of arms bearing and possession would not automatically mean that less fire arms would be on the streets and more human lives would be saved. In this context, supporters of arms control forget that most of the fire arms used criminal activities are obtained by illegal means or bought on the black market. Therefore, while a ban of bearing arms would decrease a number of fire arms on streets and public places, it would not result in less criminal activity and use of guns. It would only leave more people helpless and defenseless facing criminal reality of contemporary society. In this context, an individual remains alone to deal with unlawful activity, and the only thing left to hope for is a law enforcement response to that activity (Wheeler, 2001). Although this argument is not intended to undermine efficiency of the law enforcement in fighting crime, from the legal perspective, the police are usually entitled to act only when the crime is already taking place and someone managed to call the police to the crime scene. For a victim, it usually means that the crime has already taken place. It could not be stopped immediately and definitely was not prevented (Wheeler, 2001). On the other hand, bearing of arms gives an individual a chance for self-defense; it provides a victim with means for survival. From societal and legal perspective, self-defense with fire arms decreases the severity of crime conducted. It can save life and decrease a number of injuries imposed. In its turn, the police would have to deal with less grave crime and society would have one of its members alive, in better health and more self-confident, which is another quite important for social stability and healthy functioning.
Wheeler, S.C. (Spring 2001). Gun Violence and Fundamental Rights. Criminal Justice Ethics, 20(1), 19-24.
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Gun Threats and Self-Defense Gun Use
1-3. Guns are not used millions of times each year in self-defense
We use epidemiological theory to explain why the “false positive” problem for rare events can lead to large overestimates of the incidence of rare diseases or rare phenomena such as self-defense gun use. We then try to validate the claims of many millions of annual self-defense uses against available evidence. We find that the claim of many millions of annual self-defense gun uses by American citizens is invalid.
Hemenway, David . Survey research and self-defense gun use: An explanation of extreme overestimates. Journal of Criminal Law and Criminology . 1997; 87:1430-1445.
Hemenway, David . The myth of millions of annual self-defense gun uses: A case study of survey overestimates of rare events. Chance (American Statistical Association). 1997; 10:6-10.
Cook, Philip J; Ludwig, Jens; Hemenway, David . The gun debate’s new mythical number: How many defensive uses per year? Journal of Policy Analysis and Management. 1997; 16:463-469.
4. Most purported self-defense gun uses are gun uses in escalating arguments, and are both socially undesirable and illegal
We analyzed data from two national random-digit-dial surveys conducted under the auspices of the Harvard Injury Control Research Center. Criminal court judges who read the self-reported accounts of the purported self-defense gun use rated a majority as being illegal, even assuming that the respondent had a permit to own and to carry a gun, and that the respondent had described the event honestly from his own perspective.
Hemenway, David; Miller, Matthew; Azrael, Deborah . Gun use in the United States: Results from two national surveys. Injury Prevention . 2000; 6:263-267.
5. Firearms are used far more often to intimidate than in self-defense
Using data from a national random-digit-dial telephone survey conducted under the direction of the Harvard Injury Control Center, we examined the extent and nature of offensive gun use. We found that firearms are used far more often to frighten and intimidate than they are used in self-defense. All reported cases of criminal gun use, as well as many of the so-called self-defense gun uses, appear to be socially undesirable.
Hemenway, David; Azrael, Deborah . The relative frequency of offensive and defensive gun use: Results of a national survey. Violence and Victims . 2000; 15:257-272.
6. Guns in the home are used more often to intimidate intimates than to thwart crime
Using data from a national random-digit-dial telephone survey conducted under the direction of the Harvard Injury Control Research Center, we investigated how and when guns are used in the home. We found that guns in the home are used more often to frighten intimates than to thwart crime; other weapons are far more commonly used against intruders than are guns.
Azrael, Deborah R; Hemenway, David . In the safety of your own home: Results from a national survey of gun use at home. Social Science and Medicine . 2000; 50:285-91.
7. Adolescents are far more likely to be threatened with a gun than to use one in self-defense
We analyzed data from a telephone survey of 5,800 California adolescents aged 12-17 years, which asked questions about gun threats against and self-defense gun use by these young people. We found that these young people were far more likely to be threatened with a gun than to use a gun in self-defense, and most of the reported self-defense gun uses were hostile interactions between armed adolescents. Males, smokers, binge drinkers, those who threatened others and whose parents were less likely to know their whereabouts were more likely both to be threatened with a gun and to use a gun in self-defense.
Hemenway, David; Miller, Matthew . Gun threats against and self-defense gun use by California adolescents. Archives of Pediatrics and Adolescent Medicine . 2004; 158:395-400.
8. Criminals who are shot are typically the victims of crime
Using data from a survey of detainees in a Washington D.C. jail, we worked with a prison physician to investigate the circumstances of gunshot wounds to these criminals.
We found that one in four of these detainees had been wounded, in events that appear unrelated to their incarceration. Most were shot when they were victims of robberies, assaults and crossfires. Virtually none report being wounded by a “law-abiding citizen.”
May, John P; Hemenway, David. Oen, Roger; Pitts, Khalid R. When criminals are shot: A survey of Washington DC jail detainees. Medscape General Medicine . 2000; June 28. www.medscape.com
9-10. Few criminals are shot by decent law-abiding citizens
Using data from surveys of detainees in six jails from around the nation, we worked with a prison physician to determine whether criminals seek hospital medical care when they are shot. Criminals almost always go to the hospital when they are shot. To believe fully the claims of millions of self-defense gun uses each year would mean believing that decent law-abiding citizens shot hundreds of thousands of criminals. But the data from emergency departments belie this claim, unless hundreds of thousands of wounded criminals are afraid to seek medical care. But virtually all criminals who have been shot went to the hospital, and can describe in detail what happened there.
May, John P ; Hemenway, David . Oen, Roger; Pitts, Khalid R. Medical Care Solicitation by Criminals with Gunshot Wound Injuries: A Survey of Washington DC Jail Detainees. Journal of Trauma . 2000; 48:130-132.
May, John P; Hemenway, David. Do Criminals Go to the Hospital When They are Shot? Injury Prevention . 2002; 8:236-238.
11. Self-defense gun use is rare and not more effective at preventing injury than other protective actions
Victims use guns in less than 1% of contact crimes, and women never use guns to protect themselves against sexual assault (in more than 300 cases). Victims using a gun were no less likely to be injured after taking protective action than victims using other forms of protective action. Compared to other protective actions, the National Crime Victimization Surveys provide little evidence that self-defense gun use is uniquely beneficial in reducing the likelihood of injury or property loss.
This article helps provide accurate information concerning self-defense gun use. It shows that many of the claims about the benefits of gun ownership are largely myths.
Hemenway D , Solnick SJ. The epidemiology of self-defense gun use: Evidence from the National Crime Victimization Surveys 2007-2011. Preventive Medicine . 2015; 79: 22-27.
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THE FIVE ELEMENTS OF LAWFUL SELF-DEFENSE
By: Steve Moses
I recently attended a block of instruction taught by well-known attorney Andrew Branca at the 2022 Annual Rangemaster Conference held at the Dallas Pistol Club in Carrollton, Texas. Andrew is a true subject matter expert when it comes to the topic of self-defense (there are fewer of them than we might think). As a concealed carrier who absolutely wants to avoid shooting another person in self-defense but knows that it is possibility that he might be forced to, I never miss an opportunity such as this to become better educated when it comes to understanding what it might take to accomplish the following:
- Win the physical fight without being seriously injured or killed (winning may include successfully breaking contact without using a gun or lawfully using a gun in order to accomplish this objective).
- Not get charged with a criminal offense.
- If charged, to not be found guilty.
- Not be an easy target for a civil lawsuit.
Andrew Branca has been practicing law for thirty years with the focus being on self-defense. Andrew is an accredited CLE instructor in more than thirty states. He teaches classes open to the public, provides legal consulting to other attorneys, is the author of several best-selling books, and has produced multiple DVDs.
The principles of self-defense tend to be approximately the same in all fifty states even though terminology and wording may differ. Each state is required to disprove any one of the five elements of self-defense in order to win the case. What this means is that each element is a target, and the prosecution may work hard to find just one element that they can attack. It is not a matter of whether or not the accused threatened, injured, or killed another person as they have already admitted that they did. However, the accused contends that the action took place because of the direct actions of the other person. Concealed carriers should be aware that judges sometimes make improper rulings during the trial, and that the win rate for cases that prosecutors take to trial may be as high as 90%. The consequences for unlawfully using a firearm to threaten, harm, or kill another person are harsh. Set out below are some examples:
- Murder: Life in prison.
- Manslaughter: 15 to 40 years in prison.
- Aggravated Assault/Battery: 10 to 20 years in prison.
- Brandishing/Menacing: Jail time may vary but attorney costs including fines may be as high as $100,000 or even more.
Concealed carriers should know the five elements of self-defense that are vulnerable to attack and have at least a fundamental understanding of each. Those five elements are:
Innocence : Self-defense is intended to allow an innocent person to defend themselves against an unlawful act of aggression. It is not intended to allow an unlawful act of aggression against an innocent person. Innocence can be lost by initiating the aggression, being the first to threaten to use unlawful force, and engaging in mutual combat. It is important to not act in a manner that might be considered to be mutual combat by third parties whether they are present at the scene or seated in a jury. Concealed carriers should know that is possible to “regain” innocence by making a good faith attempt to withdraw prior to engaging in an act of aggression. The same is true in some states if the concealed carrier unlawfully shoves another and the other person then produces a deadly weapon. I think that concealed carriers need to know that they may be taking on huge risks if they make the decision to confront another person while armed, and if they find themselves on the cusp of mutual combat they need to withdraw immediately and do so in good faith.
Imminence : Imminent danger means that immediate action must be taken in order to avoid being seriously injured, killed, or the victim of certain forcible felonies such as robbery, kidnapping, or sexual assault. In order to qualify as imminent, the attacker must have the ability, opportunity, and intent to commit one or more of the above-described violent criminal acts. I use the word “intent,” but the correct legal term appears to be “jeopardy,” which Andrew described as conduct suggesting that the other party has the immediate intent in addition to ability and opportunity. Imminence is a window that can open and close. Concealed carriers who act before the window opens and after it closes can be prosecuted for having committed an unlawful act. Concealed carriers may find themselves in what Andrew called the “Zone of Ambiguity” during real-world encounters with a potential threat. I think that concealed carriers might benefit by attending a quality force-on-force training class. We should learn in a training environment how to quickly assess such situations as they are unfolding and become adept at clearly articulating afterwards what took place.
Proportionality : Proportionality refers to the degree of force used in a defensive encounter and focuses upon the amount of force applied by the aggressor against the defender. Deadly force is that force capable of causing death and/or grave bodily injury and typically includes the use of firearms, knives, and other objects depending upon the manner in which they are wielded and ability to cause physical damage. Disparity in size, strength, fighting ability, and numbers can also constitute deadly force. Non-deadly force is a lesser degree of force that might occur in a fistfight between two parties similar in size, strength, and fighting ability where there are no significant disparities between the two. Other examples of Less Lethal force are pepper spray, Tasers, and even a finger poke. When it comes to proportionality, concealed carriers in a fearful state of mind frequently end up in trouble with the law because of a combination of stress and inadequate training results in poor decision making. In addition, not possessing multiple defensive tools may encourage them to resort to the only tool available to them at the time, which often happens to be a firearm.
Avoidance : Concealed carriers should retreat rather than fight not only because it removes this element as one that the state can attack but because it is an action that lessens the chance that they will be injured or killed. Not all states have Stand-Your-Ground laws, and trespassing in one of those states can negate that claim. Castle Doctrine means retreat is not required in most states, but it may or may not apply if the student is a visitor in a Duty-to-Retreat state. I advise my students to always retreat (if possible) regardless of state law.
Reasonableness : The use of force must be reasonable from both a subjective and objective perspective. Subjective might mean the defender must have a genuine, good faith belief that his or her life was in grave danger. Objective might mean that a reasonable third-party in the same circumstances upon review of the facts would have also believed that his or her life was in grave danger. A prosecutor or jury in a safe environment will examine the actions taken by the defender and consider the following:
- What were the circumstances?
- What were the capabilities of the defender?
- What specialized knowledge did the defender possess?
- What was the apparent mental state of the defender during the encounter?
Obviously, it is not going to be easy to commit to memory everything stated above. A good start might be having at least a baseline understanding of the elements. Examples are set out below:
- Innocence : Concealed carriers may not threaten or commit an unlawful act of aggression against an innocent party. Mutual combat negates a claim of self-defense. If you get caught up in a heated argument with another person, exit just as soon as you realize what may be happening.
- Imminence : Concealed carriers should avoid threatening or using deadly force against another person unless that party is demonstrating that they have the intent, ability, and immediate opportunity to cause serious bodily injury or death.
- Proportionality : Use no more force than necessary to defend yourself or another person. Deadly force cannot be lawfully used to defend against a Less Lethal threat. Training, skills, and possession of more than one defensive tool can help bridge the gap between too little force and too much.
- Avoidance : Never miss an opportunity to break contact and avoid a physical encounter .
- Reasonableness : Would a reasonable person in the same situation as the concealed carrier have good reason to fear for their health or life?
A good working knowledge of the elements of lawful self-defense is important. I seriously doubt that if I am ever involved in a defensive shooting that I am going to wish that I had not put in so much time investing in training. Andrew Branca is a fantastic source of practical legal knowledge for concealed carriers. He has a blog, legal protection plan, and even books on the principles of lawful self-defense that can be found at www.lawofselfdefense.com .
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The truth about guns and self-defense
The NRA says the only thing that stops a bad guy with a gun is a good guy with a gun. Is that right?
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The NRA says the only thing that stops a bad guy with a gun is a good guy with a gun. Is that right? Here's everything you need to know:
Are guns used often in self-defense?
Not very — although the evidence on this issue is hotly disputed. National Rifle Association executive vice president Wayne LaPierre is often quoted as saying, "The only way to stop a bad guy with a gun is with a good guy with a gun." LaPierre and gun-rights advocates point to research that supports this argument, chiefly a 1994 study by Gary Kleck, a Florida State University criminologist. Based on a telephone survey of about 6,000 people, Kleck concluded that guns are used defensively to stop a range of crimes, from simple assault to burglary to rape, up to 2.5 million times a year. But other academics and statisticians have criticized Kleck's conclusions, saying he relied on firearms owners' self-reporting their defensive gun use — problematic because some respondents might have categorized aggressive, unlawful gun use as self-defense — and then extrapolated that unreliable data to cover the entire nation. Those critics point to other figures that suggest defensive gun use is actually quite rare.
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Gun skeptics note that in 2012 there were 8,855 criminal gun homicides in the FBI's database, but only 258 fatal shootings that were deemed "justifiable" — which the agency defines as "the killing of a felon, during the commission of a felony, by a private citizen." Another study by the nonpartisan Gun Violence Archive, based on FBI and Justice Department data, found that of nearly 52,000 recorded shootings in 2014, there were fewer than 1,600 verified cases where firearms were used for self-defense. Gun advocates counter that not all instances of defensive gun use are reported to the police, and that in most cases shots are never fired, because simply displaying a weapon can deter a criminal. Firearms can "ensure your or your family's personal safety," said Brian Doherty, author of Gun Control on Trial, "even if you don't actually plug some human varmint dead."
Will a gun make you safer?
Most Americans think so. According to recent Gallup polls, 63 percent of adults believe having a gun in the house will make them safer and 56 percent think the country would be safer if more people carried concealed weapons. But numerous studies suggest that owning a gun can actually increase a person's risk of bodily harm and death. Research published this year in the American Journal of Epidemiology found that the 80 million Americans who keep guns in the home were 90 percent more likely to die by homicide than Americans who don't. A paper in the American Journal of Public Health, meanwhile, determined that a person with a gun was 4.5 times more likely to be shot in an assault than someone who was unarmed.
What about home intrusions?
Having a gun close at hand might make you feel better protected against violent burglars, but in fact the annual per capita risk of death during a home invasion is 0.0000002 percent — essentially zero. On the other hand, a 2014 study from the University of California, San Francisco, shows that people with a gun in the house are three times as likely to kill themselves as non-firearm owners. More than 20,000 Americans shoot themselves to death each year, accounting for two-thirds of gun fatalities. "It's not that gun owners are more suicidal," said Catherine Barber, who heads a suicide prevention project at the Harvard School of Public Health. "It's that they're more likely to die in the event that they become suicidal, because they are using a gun."
Do armed civilians ever foil mass shootings?
Yes, but not regularly. An FBI study of 160 active-shooter events between 2000 and 2013 found seven incidents in which an armed civilian shot the gunman and ended the rampage. Only one of those involved a typical "good guy with a gun"; professionals — off-duty cops and armed security guards — fired in the six other cases. Still, "good guys" do occasionally stop shooting sprees: Earlier this year, a concealed-carry holder in Philadelphia shot a gunman who suddenly opened fire inside a packed barbershop, killing him before he took anyone else's life. "It could have been a lot worse," said police Capt. Frank Llewellyn. "He saved a lot of people in there." But generally speaking, authorities are uneasy about such civilian interventions.
Because most civilians don't have the skills to handle an active-shooter situation. In some states, a concealed-carry permit requires no firearms training at all. "The notion that you walk into a gun store and you're ready for game day is ridiculous," says David Chipman, who served on a SWAT team with the Bureau of Alcohol, Tobacco, Firearms, and Explosives. A recent case in Houston highlights the risks of "good guys" opening fire: A man who saw a carjacking in progress shot at the perpetrators, but missed and hit the car owner in the head. Sometimes, Chipman says, the best thing to do is not to play hero, "but instead try to be the best witness you can be."
When good guys stand down
Student and Air Force vet John Parker Jr. was legally armed and ready for action when shooter Chris Harper-Mercer went on a rampage and killed nine people at Oregon's Umpqua Community College in early October. But Parker and several other veterans on campus resisted the urge to enter the fray, fearing police would mistake them for additional shooters. "Luckily we made the choice not to get involved," Parker said, "which could have opened us up to being potential targets ourselves." Joe Zamudio, a hero in the 2011 mass shooting in Tucson that seriously wounded former Rep. Gabrielle Giffords, helped subdue gunman Jared Loughner — but not before he nearly shot an innocent man. Leaving a drug store as shots rang out, "I clicked the safety off, and I was ready," Zamudio recalled. "I had my hand on my gun [in] my jacket pocket." As he rounded a corner, Zamudio saw a man holding a gun. "And that's who I at first thought was the shooter. I told him to ‘Drop it, drop it!'" In fact, it was another man, who had wrested the gun away from Loughner. Fortunately, Zamudio held his fire. "Honestly, it was a matter of seconds," he said. "I was really lucky."
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Self-Defense Security Protection: What You Need to Know
People state self defense as one of the most popular reasons for owning a gun or body armor. There are some very good reasons why guns are used in self defense. They’re effective at stopping the perpetrator, and defensive gun use statistics show that they’re largely effective at preventing an attack before it even begins.
However, there’s also an argument against guns for self defense, so it’s important to look at all the facts to determine the best course of action. If you’re interested in using a gun for self defense, you’ll need to understand both sides of the coin, the law, and your rights.
Carrying a gun for self defense requires you to understand what’s legal in your state and whether or not you are legally allowed to conceal it. You don’t want to start out by carrying a gun illegally, because even if you are using it for self defense, you could still be subject to criminal charges for illegal possession.
One of the tricky parts of this argument is defining self defense. The lines tend to blur when it comes to what’s a reasonable amount of force and what’s excessive. While all states have laws prohibiting domestic violence offenders and convicted felons from owning guns, some states also prohibit the use of certain types of weapons by anyone.
Defining Self Defense
The law does not condone using violence simply because someone else made a threat or threw the first punch. Most self defense laws require that you first act reasonably, retreat if possible, and only use the amount of force necessary to stop the attacker.
You can always use the reasoning that if someone tries to fight you can shoot them. If someone raises their fist or hits you, the law dictates that you walk away if it’s possible. If you are charged with a crime, you can claim self defense, but the jury will consider whether you had the chance to retreat and whether or not you took it.
If the attack is ongoing, you are trapped, or you tried to retreat but the aggressor followed you, the jury will then decide if you are reasonably in fear for your safety and whether the force you used was appropriate.
Even if the attacker doesn’t have a gun, you can argue self defense when they have some other deadly weapon like a knife or a bat. You may also be justified in using a gun if the aggressor is threatening and attacking using their fists.
Castle doctrine states that you do not need to retreat in your own home. You are justified in using force to defend your home if you are in danger, without having to flee first. It’s reasonable not to expect someone to have to retreat in their own home, but instead to defend it at all costs.
In some states, “stand your ground” laws also state that this castle doctrine extends to any confrontation that takes place immediately outside of your home. That could include your front porch, your back yard, or any property you own, depending on how the law is written or interpreted.
Arguments for Gun Control
Many proponents of gun control will argue against these laws by stating that guns are rarely used in self defense and that they instead give possessors more of an opportunity to act unreasonably. They also open up an opportunity for guns used against owners.
For instance, as a carrier of a firearm, you will have more opportunities on a daily basis to use your gun inappropriately than you will have opportunities to defend yourself with it. Tempers get elevated, arguments break out, and guns are used offensively rather than defensively.
In fact, in light of mass shootings and tragic incidents everywhere, the knee-jerk reaction from gun control enthusiasts everywhere is to take away the guns, ban them completely, and set up new laws that will prevent it from happening ever again.
Unfortunately, in many cases, the laws already in place have failed and the laws they’re calling for wouldn’t have been effective. After all, people who want guns are going to get a hold of them somehow, whether they’re allowed to have them or not.
It’s also important to remember that someone who’s hell bent on committing a criminal act will not hesitate to resort to theft if it means they will then be in possession of the tools they need to commit it. If they plan on using a firearm illegally, what’s to stop them from obtaining it illegally in the first place, especially on a thriving black market?
Guns Used in Self Defense
Rather than looking at how many people are killed by guns every year, it may be beneficial to look at how many lives they save . While it’s a hard statistic to prove, guns used in self defense stats could give us a better idea of what kind of deterrent they are without ever injuring anyone at all. The point isn’t to shoot the bad guy, it’s to prevent people from getting shot, even the attacker.
For instance, guns are estimated to prevent almost 7000 crimes every day. That’s 2.5 million crimes per year. No blood is shed, and no gun is ever fired. Simply the presence of a gun does more to stop it than anything else.
It can be hard to estimate how many lives are saved , simply because when no lives are lost, it’s rarely news, and it’s rarely reported. If, for some reason, the aggressor is shot, he’s unlikely to go to the hospital, because the hospital is required by law to report that incident to the police. It’s not hard to understand that’s the last thing a criminal wants.
That being said, there are still plenty of instances we know about where the good guy with a gun stopped the bad guy.
More than half of convicted felons will admit that they avoid committing a crime when they know the victim is armed. Wouldn’t you rather go after someone who you know can’t defend themselves? They make for a much better target.
In that same vein, both criminologists and economists both agree that proclaiming your property as a gun-free zone is a surefire way to attract criminals rather than deter them. Criminals are much less likely to enter a place where they know people are armed. They’re also much less likely to break into a house when they know people are at home.
Best Self Defense Weapon
None of this is to say that a gun is the best self defense weapon, although it is an excellent one. Many attackers will back off when they realize their target is armed. A knife could do the trick, too. However, a gun makes a much more powerful statement.
Semi automatic pistols and revolvers are some of the firearms most commonly used for self defense because they’re lightweight, easy to use, and conceal well in many different ways. They’re also easy to store next to the bed or in a glove compartment.
However, for home defense , if you’re interested in the truths behind the castle doctrine, there are more powerful choices. For instance, any Mossberg 500 model has incredible stopping power, is easy to use, is very intimidating, and is a pure classic.
When considering what to use for self defense, look into the conceal carry and self defense laws in your state. You may find that a bit of training and education surrounding carrying a gun for self defense is the easiest and safest thing to do.
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- deadly shooting
Man claims self-defense after allegedly shooting roommate to death in southwest Houston
HPD officers responded to a southwest Houston home where a man was allegedly shot to death during an argument with his roommate.
HOUSTON, Texas (KTRK) -- An argument between two roommates turned deadly at a southwest Houston home, and police say the alleged shooter claims it was self-defense.
On Friday at about 3:41 p.m., Houston Police Department officers responded to the shooting at 4406 Belle Park Drive.
HPD Lt. Larry Crowson told ABC13 at the scene that a man came out when officers arrived at the home and surrendered to police.
Once they entered the house, Crowson said a man was found shot to death. He said it appeared the two men lived together and had gotten into a dispute before shots were fired.
"The information we have right now is two males were roommates - they got into some kind of an argument. During that argument, one roommate shot another roommate," Crowson said.
Officials said the shooter is claiming self-defense, but an investigation into the incident is ongoing.
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Who Is Marvin Guy? Texas Man Jailed for 9 Years Before Trial
Posted: November 21, 2023 | Last updated: November 22, 2023
A man locked in a Texas jail cell for the past nine years for allegedly killing a police officer will soon find out his fate.
Marvin Louis Guy, 59, has been confined in Bell County Jail since May 10, 2014, after being arrested on capital murder charges for allegedly killing Killeen Police Department SWAT team member Charles "Chuck" Dinwiddie the previous day during an early morning, no-knock narcotics raid. Dinwiddie died on May 11, 2014. Guy has been held on $4 million bond.
The jury began deliberations on Monday following the conclusion of an eight-day trial previously postponed due to the COVID-19 pandemic, Guy's health, and defense attorneys accusing the local district attorney's office of not providing all the evidence associated with the case.
Judge John Gauntt said on Monday that the threshold for capital murder is contingent upon Guy knowing that Dinwiddie and others were members of law enforcement, according to the Killeen Daily Herald . Murder and manslaughter are also being considered.
A capital murder conviction, or the jury convicting Guy of a lesser charge such as murder, would require additional testimony and arguments during sentencing. Self-defense would lead to Guy being exonerated.
Intentional or self-defense?
Testimony of roughly 40 witnesses began on November 6. The trial included hundreds of pieces of evidence, including video of Killeen Police Department detectives with Guy in the aftermath of the shooting. Guy claimed he was protecting himself and was unaware that police were at his home serving a warrant.
The SWAT team consisting of about two dozen officers arrived at Guy's apartment at about 5:45 a.m. on May 9, 2014, according to Reason's Billy Binion. They suspected him of dealing cocaine.
Police reportedly smashed his bedroom window, struck his door with a battering ram and detonated a tear-gas grenade.
Guy's reaction may have been attributed to an incident that occurred less than one week prior, he added, when someone broke into his neighbor's home in a similar fashion and nearly choked the tenant to death.
Binion noted that Guy was never charged with a drug-related crime, even though law enforcement officials were on the scene to serve a narcotics-related warrant.
Star witnesses for the prosecution included Dinwiddie's widow, Holly Dinwiddie, and SWAT team member and Iraq War veteran Nathan McCown—the latter of whom dragged the fallen officer's body in front of Guy's building post-shooting.
"It's left a hole that will never heal because we were one," Holly Dinwiddie said in court on November 16. "He was our superman who could do everything. It's been difficult for our kids to grow up without their dad."
McCown said the incident made him feel alone, like he did while serving abroad.
"I wanted to stop it," he said, referring to the threat. "It was shooting at me and my friends."
Prosecutors have argued that Guy's intentions were obvious, setting a scene of him waiting on his bed with a loaded gun for intruders. He ultimately fired nine shots, hitting two officers, including Dinwiddie.
Houston-based TV station KIAH reported that prosecutors in their closing arguments focused on police interviews in which Guy said he could see a trash can outside his bedroom window, arguing that if he could see the trash can, he could see the officers and who he was firing at.
The defense said Guy was alone and panicked because of people breaking into his home. They also tried to refute the prosecution's case by saying that if police could not see inside Guy's residence, there would have been no way for Guy to see outside, either.
"Mistakes and chaos turned into tragedy, but that doesn't equal capital murder," the defense said, according to KCEN-TV.
They also offered condolences to the family and department but said that capital murder charges would not bring him back.
"It was aimed," Bell County Assistant District Attorney Debbie Garrett told the jury. "This is capital murder.
"It's time for justice for Chuck, his family and each and every one of those SWAT officers. "It's time to earn your cape and find Marvin Guy guilty."
Bell County District Attorney Henry Garza, standing near Dinwiddie's sister, father, wife and other members of law enforcement, called it a day of justice.
A Change.org petition that started nine years ago is still open to donations, having raised more than $32,360 of a desired $35,000. It was started by a woman named Brandy Cooper, whose affiliation to Guy remains unknown.
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Does Israel have the right to self-defence in Gaza?
Many experts believe Israel’s case is weak because Gaza has in effect been under Israeli control.
Israel has stormed Gaza’s largest hospital and bombed residential areas and refugee camps in attacks the United Nations human rights chief Volker Turk says have unleashed a “nightmarish” situation in the besieged Palestinian enclave.
There are growing calls for a ceasefire as the humanitarian situation worsens with risks of starvation facing thousands due to the Israeli blockade of the territory – home to 2.3 million people.
‘intense bombings’ by israeli forces around gaza hospitals amid blackout, ‘terror’ amid israel’s raid on gaza’s al-shifa hospital, ‘hospitals are not battlegrounds’: world reacts to israel’s al-shifa raid, more children’s deaths in gaza in 3 weeks than annual total since 2019: ngo.
Israel and its allies, meanwhile, have insisted the bombings are justified because it has the right to self-defence in response to the October 7 Hamas attacks that killed 1,200 people and injured more than 5,600 in southern Israel.
But what is this right to self-defence, and does it justify Israel’s killing of more than 11,500 Palestinians and wounding of 29,800 since then?
What is the right to self-defence?
According to Article 51 of the UN Charter, until the UN Security Council takes measures to maintain international peace and security, “nothing in the charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations.”
Ever since Israel embarked on the bombardment of the Gaza Strip, its officials and its Western allies – from the United States and United Kingdom to the European Union – have defended Israeli actions by pointing to Article 51.
Does it apply to Israel against Gaza?
Many experts aren’t convinced that it does apply.
“The right to self-defence can be invoked when the state is threatened by another state, which is not the case,” Francesca Albanese , UN special rapporteur on human rights in the occupied Palestinian territories, said in an address to the Australian Press Club on Tuesday.
The attack Israel faced on October 7 came from an armed group in a territory, Gaza, that Israel has effectively controlled.
Israel withdrew its forces from Gaza in 2005, but it has imposed a land, sea and air blockade on the enclave since Hamas came to power in 2007.
That, according to Albanese, amounts to occupation – although Israel and its allies disagree with that assessment.
“Israel does not claim it has been threatened by another state. It has been threatened by an armed group within an occupied territory. It cannot claim the right of self-defence against a threat that emanates from a territory it occupies, from a territory kept under belligerent occupation,” Albanese said.
Albanese was referring to a 2004 advisory opinion by the International Court of Justice (ICJ), which said the construction of Israel’s separation wall in the occupied West Bank was illegal. The ICJ rejected the Israeli argument to build the wall, saying it could not invoke the right to self-defence in an occupied territory.
Are there other challenges to Israel’s argument?
Other experts point to the devastating scale of Israeli attacks on Gaza.
“The death of a reported 4,710 children , attacks on healthcare, the withholding of water and electricity – these cannot be merely justified as a ‘right to self-defence’,” said Iain Overton, executive director of the London-based Action on Armed Violence, which conducts research and advocacy on armed violence against civilians.
He added that for Israel to claim this right without being challenged “would be a mockery of the international humanitarian law”.
What rules govern Israel’s war on the Gaza Strip?
Armed conflicts are governed by international humanitarian law (IHL), a set of rules contained in international agreements like the Fourth Geneva Convention of 1949 as well as other agreements and conventions meant to ensure that all member nations subscribe to a list of fundamental rules during conflicts.
But member states do not always act by the rules, most recently during the Ukraine-Russia war. Israel has been accused of war crimes in its previous military assaults on Gaza, but it has not been held accountable.
In the current conflict, though, experts said Israel’s actions seem to violate all of the four main principles of IHL: distinction between civilians and combatants, proportionality between anticipated loss of civilian life and damage and the strategic military advantage of an attack, legitimate military purposes and the humane treatment of all individuals from civilians to detainees and hostages.
Among the dead Palestinians in the current conflict as of Thursday are 4,710 children and 3,160 women.
“The scale of the bombardment and its impact on civilians raises questions about Israel’s adherence to proportionality,” Overton told Al Jazeera.
Israel’s bombing of Gaza has also killed 102 aid workers with the UN Relief and Works Agency for Palestine Refugees (UNRWA), making this the deadliest conflict ever for UN staff in the organisation’s history.
Is it justifiable to attack civilians during a conflict?
IHL underlines the fundamental rule of all wars – that parties in a conflict must always make a distinction between civilians and combatants and that civilians and civilian objects must never be attacked.
Hence, there is no justification for civilians being attacked by either side in the current conflict, and it is unlawful.
Neve Gordon, a professor of international law and human rights at Queen Mary University of London, said both Hamas’s and Israel’s actions were “clearly war crimes”, adding that it was “obvious to anyone” that Hamas’s actions on October 7 violated IHL.
“It is also obvious that Israel has committed war crimes in Gaza since October 7,” he said.
“There is the collective punishment through the stopping of water and electricity, the compelled movement of populations and then the unleashing of eruptive violence that is killing thousands of civilians while destroying the very infrastructure of existence in the Gaza Strip,” Gordon added.
Israel controls what goes in and out of Gaza. Even the fuel for its sole power plant, which has since shut down, has been supplied with Israel’s permission.
Israel’s claims that Hamas is operating out of civilian facilities, however, are aimed at justifying civilian casualties, Gordon said.
“When Israel claims Hamas targets in refugee camps and hospitals, the idea in both cases is to underscore that the value of the target is extremely high and, therefore, that Israel is abiding by the principle of proportionality even if many civilians die,” Gordon said.
What about Israeli attacks on hospitals, schools and refugee camps? Are such tactics lawful?
International humanitarian law insists that medical units must be protected . Similarly, international law also disallows attacks against places that are indispensable to the survival of the civilian population, such as drinking water installations and farmland.
Attacking schools and hospitals during the conflict, as Israel has done, is “one of the six grave violations” , according to the UN Office of the Special Representative of the Secretary-General for Children and Armed Conflict.
Yet Israel has been unrelenting in these attacks despite facing heavy criticism. Experts have pointed to how it has relied on the claim, backed by the US and EU, that Hamas is using civilians in these places as “human shields”.
US President Joe Biden on Wednesday reiterated the Israeli claim of a Hamas base at al-Shifa Hospital, Gaza’s largest medical facility. He offered no proof, and Israel has so far not shown any evidence for that claim either.
But what if Hamas is using civilians as ‘human shields’?
One way Hamas uses civilians as “human shields” , Israel insists, is by allegedly operating out of schools, hospitals, refugee camps and shelters.
But many experts believe that painting civilians as human shields is a convenient argument that Israel has used to create legitimacy for its attacks.
“When a person in a battlefield is defined as a human shield, …he or she loses some of the protections assigned to civilians by the laws of war,” Gordon said.
“What many legal commentators say is that once a warring party uses human shields, lethal forms of violence that might otherwise be prohibited in a civilian setting can be used,” he added.
Others, like Overton, said that even if Israel’s claims about Palestinian civilians being used as human shields are accurate, Israeli actions are still not justified.
“The claim that civilians are being used as human shields does not absolve a party from its obligations under IHL. Even if combatants are present, attacks must still adhere to the principles of distinction and proportionality,” Overton said, pointing to how UN Secretary-General Antonio Guterres called Gaza a “graveyard for children” on November 7.
“This underscores the severe impact on civilians, suggesting that the claim of human shields may not justify the scale and nature of the attacks on civilian areas,” he added.
What are some other laws that Israel has potentially violated?
Israel has also been accused of using white phosphorus , which could trigger fires as well as lead to severe, potentially fatal burns. Firing white phosphorus is akin to an indiscriminate attack, according to Amnesty International, which affects civilians and military targets alike and hence is prohibited under international law.
IHL makes it clear that parties to a conflict “may not order the displacement of the civilian population, in whole or part” except if military reasons demand or if their security is involved.
On October 13, Israel ordered more than 1 million Palestinians in northern Gaza to evacuate and move to the besieged enclave’s south despite the UN warning that Gaza faced a “real catastrophe” due to such an order. Israel has justified this order by saying it was aimed at limiting civilian casualties during its military operation in northern Gaza.
IHL also lays out that all parties in a conflict must ensure that humanitarian relief operations are allowed and facilitated “unimpeded”. However, Israel had refused to allow essential aid into Gaza despite widespread warnings of a humanitarian crisis.
Israel’s decision to impose a “ complete siege ” of Gaza’s power, food and water supplies has also been widely criticised for triggering a humanitarian crisis as thousands of Palestinians face “death by starvation”, according to the ActionAid charity. Humanitarian law prohibits the use of starvation of the civilian population “as a method of warfare”.
“The complete siege now lasting over one month has made it an agony for residents in Gaza to find basic necessities and frankly to survive,” Turk said last week, adding that “all forms of collective punishment must come to an end”.
Are Israel and Hamas likely to be held to account for any legal violations?
While lawyers and experts have pointed to likely violations by Israel and Hamas of international law and international humanitarian law in particular, that might not ensure legal action against them.
Experts point to the lack of action against Israel for its 2008 assault on Gaza, named Operation Cast Lead, during which Israel was accused of war crimes. The 22-day Israeli offensive killed 1,400 Palestinians. At least 13 Israelis were killed in retaliatory rocket attacks by Palestinian armed groups.
“Historical precedents, such as the inquiries following Operation Cast Lead and others, show that while investigations into Israeli actions in Gaza have occurred, they often have not led to significant preventative measures or accountability,” Overton said.
In the current conflict, the UN Commission of Inquiry on the Occupied Palestinian Territory had announced on October 10 that there was “clear evidence of war crimes” from both sides and added that it had been “collecting and preserving evidence of war crimes” because it is “intent on ensuring legal accountability, including individual criminal and command responsibility”.
“The killing of so many civilians cannot be dismissed as collateral damage. Not in a kibbutz. Not in a refugee camp. And not in a hospital,” the UN human rights chief said.
At least three Palestinian rights groups have filed a lawsuit with the International Criminal Court (ICC) against Israel during the ongoing war. And this week, French lawyer Gilles Devers submitted a complaint to the prosecutor at the ICC on behalf of Gaza victims.
A US-based civil rights group, the Center for Constitutional Rights, has also sued Biden and senior members of his cabinet for “complicity” in the “unfolding genocide”.
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Oklahoma board recommends the governor spare the life of a death row inmate who argued self-defense
OKLAHOMA CITY (AP) — The Oklahoma Pardon and Parole Board narrowly voted Wednesday to recommend sparing the life of a man set to be executed later this month for what he claims were the self-defense killings of two men in Oklahoma City in 2001.
The board voted 3-2 to recommend clemency for Phillip Dean Hancock, who has long maintained he shot and killed Robert Jett Jr., 37, and James Lynch, 58, in self-defense after the two men attacked him. Republican Gov. Kevin Stitt must now decide whether to grant clemency to Hancock, who is scheduled to receive a lethal injection on Nov. 30.
The board’s decision came after it heard from Hancock, 59, his attorneys, lawyers from the state and members of Jett and Lynch’s families. Two Republican state legislators who say they strongly support the death penalty , Reps. Kevin McDugle and Justin Humphrey, also testified on Hancock’s behalf.
“If any one of us were in that same exact situation … we would have fought for our lives,” said McDugle, R-Broken Arrow.
READ MORE: Why some Republicans in Oklahoma want to pause executions
Hancock’s attorneys claim that Jett and Lynch were members of outlaw motorcycle gangs who lured Hancock, who was unarmed, to Jett’s home and that Jett ordered him to get inside a large cage before swinging a metal bar at him. After Jett and Lynch attacked him, Hancock managed to take Jett’s pistol from him and shoot them both.
Hancock’s attorneys also argued that his trial attorney has admitted he struggled with drug and alcohol addiction at the time of the trial and did not properly represent Hancock.
But attorneys for the state argued Hancock gave shifting accounts of what exactly happened and that his testimony didn’t align with the physical evidence at the scene. Assistant Attorney General Joshua Lockett said the jury took all of this into account before rendering its verdict, which has been upheld by numerous state and federal appeals courts.
“Hancock’s credibility was absolutely eviscerated at trial because his claims conflicted with the evidence,” Lockett said.
Lockett also said after Hancock shot Jett inside the house, a witness who was at the scene testified Hancock followed Jett into the backyard and heard a wounded Jett say: “I’m going to die.” Hancock responded, “Yes, you are,” before shooting him again, Lockett said.
“Chasing someone down, telling them you are about to kill them and then doing it is not self-defense,” Lockett said.
WATCH: Oklahoma death row prisoner’s case reignites debate over capital punishment
Jett’s brother, Ryan Jett, was among several family members who testified and urged the panel not to recommend clemency.
“I don’t claim that my brother was an angel by any means, but he didn’t deserve to die in the backyard like a dog,” Ryan Jett said.
Hancock also was convicted of first-degree manslaughter in a separate shooting in 1982 in which he also claimed self defense. He served less than three years of a four-year sentence in that case.
Hancock, who testified Wednesday via a video link from the Oklahoma State Penitentiary in McAlester, said he arrived at the home “unarmed and unsuspecting” and that he was terrified when an armed Jett ordered him into a cage.
“Please understand the awful situation I found myself in,” Hancock said. “I have no doubt they would have killed me. They forced me to fight for my life.”
Stitt has granted clemency only one time, in 2021, to death row inmate Julius Jones, commuting his sentence to life without parole just hours before Jones was scheduled to receive a lethal injection. Stitt has denied clemency recommendations from the board in two other cases: Bigler Stouffer and James Coddington, both of whom were later executed.
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Formerly incarcerated lawmaker reflects on breaking down barriers after prison
Nation Nov 06