The 2nd Amendment
The 2nd Amendment is probably the most ignored in the history of the Supreme Court due to the fundamental questions it raises regarding the nature of the relationship between government and individuals, and the unwillingness and fear of agents of government to address these issues honestly and openly.
In a fairly recent U.S. Supreme Court case (1990), U.S. versus Verdrigo- Urquidez, 110 S. Ct. 1056, 1060-61, the Court referred to the Second Amendment and specifically addressed the meaning of the words "the people" as used in the First, Second, and Fourth Amendments to the U.S. Constitution. While the specific case involved only the protections afforded to individuals under the Fourth Amendment, the Court did clearly state that the words "the people" in the Second Amendment have the same meaning as they do in the First and Fourth Amendments, i.e., the rights of individuals.
While the dicta doesn't define how the Supreme Court would rule on a particular Second Amendment case, it does indicate the Court believes that the "right to keep and bear arms" is an individual right, rather than a collective right as the anti-gun movement and the mass media would like everyone to believe.
In any case, you'd better exercise your right to self-defense, because you can't sue the government if it fails to protect you from criminals. In 1856 the Supreme Court declared that local law enforcement had no duty to protect a particular person, but only a general duty to enforce the laws. [South v. Maryland, 59 U.S. (HOW) 396,15 L.Ed., 433 (1856)]. In 1982, the U.S. Court of Appeals, Seventh Circuit, held:
"...there is no constitutional right to be protected by the state against being murdered by criminals or madmen. It is monstrous if the state fails to protect its residents against such predators but it does not violate the due process clause of the Fourteenth Amendment or, we suppose, any other provision of the Constitution. The Constitution is a charter of negative liberties: it tells the state to let people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order." [Bowers v. DeVito, U.S. Court of Appeals, Seventh Circuit, 686F.2d 616 (1982) See also Reiff v. City of Philadelphia, 477F.Supp.1262 (E.D.Pa. 1979)].
There are a few, very narrow exceptions. In 1983, the District of Columbia Court of Appeals remarked that:
"In a civilized society, every citizen at least tacitly relies upon the constable for protection from crime. Hence, more than general reliance is needed to require the police to act on behalf of a particular individual. ...Liability is established, therefore, if the police have specifically undertaken to protect a particular individual and the individual has specifically relied upon the undertaking. ...Absent a special relationship, therefore, the police may not be held liable for failure to protect a particular individual from harm caused by criminal conduct. A special relationship exists if the police employ an individual in aid of law enforcement, but does not exist merely because an individual requests, or a police officer promises to provide protection." [Morgan v. District of Columbia, 468 A2d 1306 (D.C. App. 1983)].
As a result, government - specifically, the police - has no legal duty to help any given person, even one whose life is in imminent peril.
In a New York case, a Judge Keating dissented, bitterly noting that Linda Riss was victimized not only because she had relied on the police to protect her, but because she obeyed New York laws that forbade her to own a weapon. Judge Keating wrote:
"What makes the city's position particularly difficult to understand is that, in conformity to the dictates of the law, Linda did not carry any weapon for self-defense. Thus, by a rather bitter irony she was required to rely for protection on the City of New York, which now denies all responsibility to her." [Riss v. City of New York, 293 N.Y. 2d 897 (1968)].
The California Court of Appeals held that any claim against the police department "is barred by the provisions of the California Tort Claims Act, particularly Section 845, which states: `Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection or, if police protection service is provided, for failure to provide sufficient police protection." [Hartzler v. City of San Jose, App., 120 Cal.Rptr 5 (1975)].
The Superior Court of the District of Columbia held that:
"...the fundamental principle [is] that a government and its agents are under no general duty to provide public services, such as police protection, to any particular individual citizen...The duty to provide public services is owed to the public at large, and, absent a special relationship between the police and an individual, no special legal duty exists."
In an accompanying memorandum, the Court explained that the term "special relationship" did not mean an oral promise to respond to a call for help. Rather, it involved the provision of help to the police force. [Warren v. District of Columbia, D.C. App., 444 A.2d 1 (1981)].
"...the defendant law enforcement agencies and officers did not owe them (the children - ed.) any legal duty of care, the breach of which caused their injury and death...Our law is that in the absence of a special relationship, such as exists when a victim is in custody or the police have promised to protect a particular person, law enforcement agencies and personnel have no duty to protect individuals from the criminal acts of others; instead their duty is to preserve the peace and arrest law breakers for the protection of the general public. In this instance, a special relationship of the type stated did not exist....Plaintiff's argument that the children's presence required defendants to delay (the) arrest until the children were elsewhere is incompatible with the duty that the law has long placed on law enforcement personnel to make the safety of the public their first concern; for permitting dangerous criminals to go unapprehended lest particular individuals be injured or killed would inevitably and necessarily endanger the public at large, a policy that the law cannot tolerate, much less foster." [Lynch v. N.C. Dept. of Justice, 376 S.E. 2nd 247 (N.C. App. 1989)].
"....a distinction must be drawn between a public duty owed by the officials to the citizenry at large and a special duty owned to a specific identifiable person or class of persons.....Only a violation of the latter duty will give rise to civil liability of the official....to hold a public official civilly liable for violating a duty owed to the public at large would subject the official to potential liability for every action he undertook and would not be in society's best interest.".....no special relationship existed that would create a common law duty on the defendants to protect the decedent (Marshall - ed.) from Mundy's criminal acts. Similarly, without a special relationship between the defendants and the decedent, no constitutional duty can arise under the Due Process Clause as codified by 42 U.S.C. Sec. 1983. Therefore, plaintiff's [Mrs. Marshall's] due process claim also must fall." [Marshall v. Winston, 389 S.E.2nd 902 (Va. 1990)].
On a related matter, courts have also held that not only are unconstitutional laws null and void from the moment they supposedly begin, but also that you have every right to defend yourself against unlawful force. The fact that the government, through its agents, may be your attacker is immaterial:
"Citizens may resist unlawful arrest to the point of taking an arresting officer's life if necessary." [Plummer v. State, 136 Ind. 308 (1893)]
This premise was upheld by the Supreme Court of the United States when the court stated:
"...where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What might be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed." [John Bad Elk v. U.S., 177 U.S. 529, (1900)]
"An arrest made with a defective warrant; or one issued without affidavit; or one that fails to allege a crime is without jurisdiction, and one who is being arrested, may resist arrest and break away. If the arresting officer is killed by one who is so resisting, the killing will be no more than an involuntary manslaughter." [Housh v. People, 75 Ill. 491; State v. Leach, 7 Conn. 452; State v. Rousseau, 241 P. 2d 447; State v. Spaulding, 34 Minn. 3621.]
Consider the fiery end of the Branch Davidians in their home while you ponder that one.
"These principles apply as well to an officer attempting to make an arrest, who abuses his authority and transcends the bounds thereof by the use of unnecessary force and violence, as they do to a private individual who unlawfully uses such force and violence." [Jones v. State, 26 Tex. App.1; Beaverts v. State, 4 Tex. App. 175; Skidmore v. State, 43 Tex. 93. #903]
"When a person, being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel force by force, and if, in the reasonable exercise of his right of self defense, his assailant is killed, he is justifiable." [Runyan v. State, 57 Ind. 80; Miller v. State, 74 Ind.1.]