A Response to the "Anti-Government" View of the Second Amendment

I appeared on "Essential Pittsburgh" yesterday, a call-in show on NPR radio, to talk about the constitutionality of President Obama's executive actions intended to improve and enhance background checks on persons purchasing guns. Following the program I received an e-mail from a listener (first name of "Jim") who challenged my position on the Second Amendment in several respects. He wondered why I omitted the phrase "of the people" when reciting the Second Amendment from memory. (Really, it's just my age, Jim!) He suggested that I favored the "collective right" over the "individual right" interpretation of the Second Amendment. (I don't - but we still have to determine precisely what the individual right is.) He wrote that I was wrong in stating that the Pennsylvania Constitution of 1776 included the right to hunt. (I have since checked and it does protect the right to hunt, in Section 43.) Most importantly, he expressed support for the theory that the Second Amendment was intended to prevent "tyranny." I agree with Jim on this last and most important point. But he and I may disagree about precisely how the Second Amendment was intended to operate as a check on "tyranny." My entire response to Jim follows.

The Second Amendment, the Right of Self Defense, and Gun Control

In District of Columbia v. Heller and McDonald v. Chicago the Supreme Court ruled that the Second Amendment confers at least a limited right for an individual to possess a gun.What are the implications for the constitutionality of gun control laws?

The Interplay of Sections 776.041 (Use of Force by Aggressor) and 776.013(3) (Stand Your Ground) in Zimmerman Case

The "Stand Your Ground" law explicitly provides that a person "has no duty to retreat" if he or she is "not engaged in an unlawful activity." However, another statute entitled "Use of Force by Aggressor" provides that if a person initially provokes the use of force then that person may not claim self-defense unless he or she has "exhausted every reasonable means to escape." I suspect that prosecutors will rely upon this second law in their prosecution of George Zimmerman for the shooting death of Trayvon Martin.

Zimmerman's Low Burden of Proof on the Issue of Self Defense

In her news conference announcing that George Zimmerman was being charged with second degree murder in the death of Trayvon Martin, Florida Special Prosecutor Angela Corey mentioned several times that self-defense is an "affirmative defense" under Florida law. She also said that "Stand Your Ground" is "a tough affirmative defense to overcome." See M. Alex Johnson, MSNBC, Zimmerman to plead not guilty to second degree murder (April 11, 2012). It will be "tough" for the prosecution because although Zimmerman has to introduce some evidence that he acted in self-defense, that doesn't mean that he has to convince the jury that he acted in self-defense. All he has to do is to create a "reasonable doubt" as to whether he acted in self-defense. A proposed amendment to the Florida Jury Instructions makes that perfectly clear.