The Morning After

I am writing this the morning after the Mueller hearings. And I am pinching myself to try and find out if what I recall of the hearings yesterday actually happened.

I mean – are the Democrats really as stupid as they appeared to be yesterday?

Did they really intend to showcase the Mueller report’s fundamental departure from the rule of U. S. law, wherein the President was not afforded the presumption of innocence, as required by the due process enshrined in the Fifth and Fourteenth Amendments to the U. S. Constitution? Did they not expect that Representative Ratcliffe, or one of the other Republican representatives, would use the opportunity presented by the hearings to ensure that everyone understands that no prosecutor, ever, has any authority to make statements about “exoneration?” Did they not understand that the great unwashed masses are at least alert enough to realize that if the President himself can be treated this way, then there is no hope for the rest of us?

Did they really intend to make it glaringly obvious to the entire country that Mr. Mueller failed to recommend a criminal indictment for obstruction by the President for no other reason than that he simply did not have sufficient evidence to make such a recommendation? Did it surprise them that Mr. Mueller himself felt it necessary to correct his testimony at the beginning of the second hearing, when he specifically repudiated the rationale that he was prevented from recommending indictment by Justice Department rules?

Did they actually intend to vividly demonstrate that the vaunted Special Prosecutor appeared to be completely non-credible, lacking even basic awareness of what was in his own report?

If such a debacle did actually occur, then that must explain the grin on my face this morning which refuses to go away.

But wait a minute. The Democrats are diabolically intelligent and single-minded in pursuit of their agenda. They just can’t have been that stupid. There must be some fiendishly deceptive underlying motive for what just happened, which us ordinary folks have trouble perceiving.

Because, as incredible as it may seem, even this morning, many Democrats appear to be continuing to persevere in their now forlorn hopes of impeachment, as they speak of calling further witnesses before their committees to delve into the Mueller report. They do this even as they know that their political leader, the Speaker of the House, has no interest in impeachment. They do this when they know that even if they should somehow miraculously succeed at impeachment, they would never succeed in winning the Senate trial which would follow. They are starting to look like an assortment of quite bedraggled whack-a-moles, as they continue to get slapped down time after time in their relentless stalking of the President.

I wonder if something like this has ever before happened in the history of the United States, when one of the political parties became so inflamed with rage against the incumbent President that they were literally blinded to the self-destructive effects of their own actions.

This is a serious question for Democrats, because after yesterday’s shenanigans, even the totally in-the-tank-for-the-Democrats Main Stream Media could not avoid the conclusion that the hearings were a disaster for the Democrats. And that is saying a lot. If the events of yesterday could have possibly been contorted into a positive for the Democrats, the Main Stream Media would have made it happen. But even they, with all their bias, and all of their bright and articulate talking heads, could not figure out how to do it.

So I am still left with the conundrum. Why did the Democrats hold those hearings? And why are they speaking of holding further hearings?

I am assuming that their very first priority is to win the next presidential election. That is a reasonable assumption, is it not? And it is also reasonable to assume that the bases of both parties are stable and solid, and not likely to signifcantly change their voting patterns. So this election will be won in those swing states that Mr. Trump took last time: states like Wisconsin, Michigan, Ohio, Pennsylvania, and Florida.

Do the Democrats really think that the voters in these states are overwhelmingly concerned about Russian collusion and Trump obstruction, especially after the negative results of the Mueller report and most especially after the catastrophe of the hearings yesterday? I can understand that the voters of the radical left typically found in California or New York would be foaming at the mouth about supposed Presidential wrongdoing regardless of the results of the investigation, but I just can’t see that happening in the states that matter for the election.

To the contrary, these voters are likely to be concerned about things like the economy, health care, and immigration. The obvious strategy would be for the Democrats to aggressively attack the President on these issues. And frankly, they had better get it done soon, because they really don’t have a case to make on the economy, despite all of their whining about minimum wages and the benefits of the rich. They may be able to convince these voters on health care alternatives, since that issue is somewhat open given the crumbling of Obamacare. However, on immigration they should be very concerned, since the voters in these swing states might not be happy to hear about all the benefits which Democrats are proposing for illegal aliens. A savvy voter might be asking himself, where will those benefits be coming from, if not from my benefits and my pocket?

So the question remains. Are the Democrats so infuriated with the President that they simply don’t care what happens, as long as there is the slightest possible chance that they can bring him down? Or maybe they are thinking that the Democrat presidential candidates can attack on the issues, while the incumbent House committees can continue attempting to unearth Presidential wrongdoing. But what about the House seats in those swing states? Do the Democrats think that their Congressional candidates can run on a record of nothing other than House investigations of President Trump? If it is a calculated risk they are taking, it seems like a very long shot indeed.

I may be giving the Democrats more credit than they deserve by thinking that they are actually acting in accordance with a coherent, cohesive strategy. It is probably more likely that there is a wide spectrum of ideas among Democrats as to how to approach the next election. And I think it is also likely that many Democrats are so incensed with the President that they simply cannot make rational decisions about how to oppose him.

I find this to be a really interesting phenomenon. It appears that the President has been able to unhinge his political opponents from reasoned thinking, simply by virtue of his speech. To state it directly, he has offended them. He offends them every day by what he says and how he says it. He is politically incorrect on a grand scale.

So the progressives and the rest of the politically correct in this country rant and rave about the President’s speech, they disparage his fitness for office, they label his speech as hate speech, all the while being forced to acknowledge that he has every right to speak as he does, since that pesky Constitution of ours guarantees it.

We saw this recently with a surprising attack on the President by Fox contributor Napolitano. [1] Although maybe it should not be considered surprising, since he has become increasingly critical of the President as the President’s successes have continued to accumulate. Mr. Napolitano labels the President’s recent criticism of the extreme left “squad” of congresswomen as hate speech. But if he were to think carefully about what the President said, as well as what those congresswomen are doing, he would realize that the President is not conducting a personal attack on these women. The President is attacking what those women are doing, which is to undermine the very foundations of our republic with their vile anti-American rhetoric. Their ideas go well beyond mere dissent, and the President is correct to recognize that and aggressively criticize it. In fact, the President is one of the few in leadership who seems perceptive enough to understand the extreme danger the country faces from the progressive agenda represented by these women and many other leftist Democrats. And so, once again, Mr. Napolitano completely misses the point of the President’s words.

We all owe this President a tremendous debt of gratitude. Long after he completes his second term, and leaves office as one of our most successful presidents, he will not be remembered for all of that success. Instead, his legacy of fearlessness – his courageous proclivity to say what needs to be said, regardless of who it offends, will be recognized as his greatest contribution to our country. He will be celebrated for having made it clear that “hate speech” is really nothing more than speech that someone else doesn’t like, and that it is a completely relative term which is used to inhibit that precious gift of freedom of speech which we are so fortunate to enjoy in this country. It will be understood by all that he single-handedly guided our nation in throwing off the suffocating yoke of politically correct speech, and that he saved us from the domineering tyranny of the easily offended.

References:

1. Napolitano, Andrew. “Judge Andrew Napolitano: Trump has unleashed a torrent of hatred.” Fox News. July 25, 2019. https://www.foxnews.com/opinion/judge-andrew-napolitano-the-longest-pleasure

The Alabama Abortion Bill and the Vulnerability of Roe v. Wade

The Alabama Human Life Protection Act signed into state law on May 15th seems to have engendered a noticeable increase in intensity beyond the usual aggrieved progressive response to the introduction of restrictive abortion laws. [1,2] This is somewhat curious, since this is only one of several bills introduced in states this year to restrict abortions. [3] I suspect it is because the sponsors of the Alabama abortion bill have stated that their intent is to directly challenge Roe v. Wade, and that they will focus on the personhood of the baby in the womb:

“It was about creating something that was meant to go all the way to the Supreme Court and it also needed to have the most value when talking about a pro-life bill if you are going to try and pass it,” Collins said. [4]

“The point is it acknowledges there is a baby, there is a person there,” Collins said. “Under Alabama law right now, that baby, that presence, is already acknowledged under current law.” [5]

Although we see every new candidate for the federal judiciary, especially the conservative ones, solemnly intone their fidelity to precedent in the legal system, the composition of the Supreme Court is changing thanks to President Trump, and it may be the case that more conservative justices will find a way to rectify the flawed reasoning established by Roe and subsequent abortion cases.

Personhood

As the Court itself in Roe stated:

“If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment. [6]

However, that Court proceeded to reject personhood for the unborn child for two reasons: that existing references to “person” in the Constitution were found to have been applied only in a “post-natal” sense, and also that there was relatively freer access to abortion in the 19th century, indicating that the legal history would not have sanctioned such access if the child in the womb was considered a person.

“All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word “person,” as used in the Fourteenth Amendment, does not include the unborn.”[7]

This specious argument, of course, does not prove anything. The fact that prior Constitutional language addressing “persons” did not happen to apply to pre-natal existence does not imply any intent by Constitutional authors to deny pre-natal personhood. The Court makes no attempt to explain why those other, “non-natal,” Constitutional references to a “person” would preclude personhood for the unborn child. And with regard to freer access to abortion in the 19th century, what an anachronistic and unconvincing approach to take: reaching back a century, when much less was known about life in the womb, to rationalize rejection of personhood for that life.

The Court then went on to throw up its hands and blame its inability to decide upon the humanity of the unborn child on doctors, philosophers, and theologians:

“We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” [8]

By deciding that the unborn are not persons, the Court backed itself into a corner by taking the irrational position that the unborn child only becomes a fully human person, deserving of human rights, when it manages to exit the womb of its mother. This is tantamount to the Court waving a wand and trying to convince us that some magic descends upon a baby as it is being born, and that magic is what gives it humanity and makes it a person. This is absurd. Think about the wild logic the Court is proposing here. The Court would have you believe that full humanity hovers somewhere outside of the mother ready to whoosh into the baby as it is being born. This magical bestowal of personhood follows no coherent set of rules: a premature baby has this vitally important attribute, while an older baby, just short of full term, but not yet born, unfortunately, does not have it. But we all know the obvious truth and can see the elephant in the room: a child’s humanity has nothing to do with the manner and timing of its birth.

The Court could have gone in another, more judicious direction with the concept of personhood. The Court could have recognized that human life is initiated at conception, and that this human life initiated at conception is new and genetically unique. That is certainly not a proposition that anyone can deny. And the Court could have decided that such initiation itself is enough to warrant establishment of personhood. That at least would have been a decision that had some logical consistency, and would not have led to the conclusion that the establishment of personhood is to be governed by nothing more than the decision as to whether or not a child should be born.

The Invocation of Natural Law

The Alabama abortion law is not only noteworthy for its focus on personhood, but also for the way in which it justifies personhood. The natural law principle of equality among men, as expressed in the U.S. Declaration of Independence, is used in the Alabama abortion law to make the case for the humanity of the unborn child:

“In the United States Declaration of Independence, the principle of natural law that “all men are created equal” was articulated. The self-evident truth found in natural law, that all human beings are equal from creation, was at least one of the bases for the anti-slavery movement, the women’s suffrage movement, the Nuremberg war crimes trials, and the American civil rights movement. If those movements had not been able to appeal to the truth of universal human equality, they could not have been successful. [9]

This is a particularly appropriate approach, because the Roe Court failed to acknowledge the natural law grounding of our Declaration of Independence and Constitution with respect to the right to life. In its review of abortion history, the Court noted that Christian theology and canon law accepted Aristotle’s theory of delayed animation up until the 19th century, and that therefore there was Christian agreement that abortion prior to animation would not be homicide. [10] Although this appears to imply that the Christian Church would have approved of abortion until the 19th century, the truth is quite the opposite:

“Since the first century the Church has affirmed the moral evil of every procured abortion. This teaching has not changed and remains unchangeable. Direct abortion, that is to say, abortion willed either as an end or a means, is gravely contrary to the moral law.” [11]

This quotation from the Catechism of the Catholic Church is not exclusively a statement of religious belief specific to Catholicism. It is an element of the natural law tradition which was employed by the Founders to lay the foundation for the rights guaranteed by the Constitution. It was no accident that the right to life was the first of only three natural rights proclaimed in the Declaration of Independence. And as succinctly expressed by Mitchell Kapagian, an abortion law which transgresses the natural law results in disaster:

“The legalization or institutionalization of a practice or policy such as abortion-on-demand does not make it moral because the natural law and God’s justice have greater weight than Supreme court decisions. Roe v. Wade is just as immoral, cruel, and inhumane as the Dred Scott decision that sanctioned slavery and classified blacks as the “chattel” or property of slave-owners.” [12]

Since the Roe Court ignored the natural law, denied the personhood of the unborn child, and could not find itself able to hazard a guess as to when life might begin, it proceeded to establish an arbitrary point, viability, at which the State has an interest in the protection of “potential human life:”

“This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb.” [13]

The capricious nature of this arbitrary approach to assigning humanity to the child in the womb is readily illustrated when we consider the conditions under which abortion is permitted under Roe. In spite of the avowed interest in the protection of viable human life in the womb, Roe authorized abortion for the health of the mother even if the baby would be viable outside the womb.

“For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except [emphasis added] where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” [14]

And then the broad definition of the “health of the mother” in Doe v. Bolton resulted in nothing less than abortion on demand:

“But in Roe‘s companion case, Doe v. Bolton, the Court defined “health” to include “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being” of the mother. In most states, that is broad enough to permit virtually any abortion in the seventh, eighth, or ninth months of pregnancy if any of these reasons is invoked.
[15]

“Some state legislatures, and even the federal government, have been able to incrementally legislate such things as parental notification laws or bans on partial birth abortion, but none of those operate to ban abortion completely at any stage of pregnancy. Even states with late-term “bans” on abortion must include – because of Roe – an exception for the life and health of the mother.” [16]

So with one hand, the Court conferred some limited valuation on the life of the unborn child, affirming that the state has a compelling interest in the preservation of “the potentiality of human life,” beginning at the point of viability. Then, with the other hand, the Court crushed that same semi-valuable life, allowing the concern for health of the mother to override any protection of that life. The supposed “balancing” is meaningless. As a result, since 1973, almost 61 million abortions have been performed in the United States. [17] There has very obviously been no exercise of compelling state interest on behalf of unborn human life as purportedly intended by the Court in Roe.

The Alabama abortion bill improves upon this sorry situation to a certain extent, by minimizing the health risks which would justify abortion:

“It defines a serious health risk as a condition requiring an abortion “to avert [the mother’s] death or to avert serious risk of substantial physical impairment of a major bodily function.” It only includes emotional and mental illnesses if they have been diagnosed by a licensed psychiatrist and “there is reasonable medical judgment that she will engage in conduct that could result in her death or the death of her unborn child.” “[18]

While this language should significantly reduce abortions in Alabama, it has to be recognized that it still falls short of the natural law standards it professes to uphold. If the child in fact deserves the protections of personhood, and is to be considered fully human, then its life, when weighed against the mere health of its mother, should prevail. Yet even this bill continues to view the human life of the unborn child to be of lesser value than that of its mother.

In fact, it seems to be generally taken for granted that, despite the Court’s avowal of the compelling State interest in protecting the “potentiality of human life” in the womb, when the life of the mother is on the line then the life of the child is forfeit. What is the moral justification that determines that the preservation of the life of the mother is so valuable that it merits the deliberate destruction of an innocent child? The answer, of course, is that there is no such justification.

It does not help that many Christian denominations have also abandoned the natural law. This defect is well represented by the following quotes from the Baptist position on abortion:

“We affirm that God is the Creator of all life, that human beings are created in the image of God, and Christ is Lord of life. Recognizing this gift of life, we find ourselves struggling with the painful and difficult issue of abortion.”

“As American Baptists we oppose abortion, as a means of avoiding responsibility for conception, as a primary means of birth control, without regard for the far-reaching consequences of the act.”

“We grieve with all who struggle with the difficult circumstances that lead them to consider abortion. Recognizing that each person is ultimately responsible to God, we encourage men and women in these circumstances to seek spiritual counsel as they prayerfully and conscientiously consider their decision.” [19]

This is amazing. The lead statement here affirms that all human beings are created in the image of God, which is a clear recognition of the natural law with respect to human life. And so the logical conclusion would be that we humans, especially those of us who call ourselves Christians, would never presume to destroy an innocent unborn human being created in the very image of God. Yet, stunningly, after all the hand-wringing displayed by the above protestations of the agony of the abortion decision, these Christians cannot bring themselves to decisively condemn abortion.

This unwillingness to commit to the right to life is even harder to understand when we clear away the denial and directly face the reality of abortion and admit that it involves the killing of an innocent child. This, in itself, is a terrible evil. The evil is amplified by the lamentable cooperation of the child’s own mother in that killing. It is evil with an extra and agonizingly perverse twist. It is so jarring an example of violence because it is in complete and absolute opposition to the naturally intended norm, which is the love and nurturing that can only be provided by a mother.

What sort of grim and harsh reality do we now inhabit, when a mother’s womb, which should be the safest of all safe places, has instead become the most dangerous place on the planet for an unborn child?

It Is Time

It is time for the States which value the life of the unborn to undertake a concerted effort to throw off the shackles of the 1973 and subsequent abortion rulings. The shaky legal rationale underlying Roe is ripe for assault. It is high time to end the massive destruction of human life masquerading under the label “termination of pregnancy.” It is also time to acknowledge the severe damage that has been done to women who undergo abortions and who suffer the consequences in silence. The harm includes increased risk of cancer, multiple types of immediate complications, increased risk of ectopic pregnancies, and severe negative psychological reactions. [20, 21] Tragically, the U. S. medical establishment has chosen to turn a blind eye to the compelling research, especially from India, indicating that abortion is a strong causal factor for breast cancer. [22]

Progressives are experts at keeping the abortion debate confined to slogans which deceptively mask the truth of abortion. They like to insist on “a woman’s right to choose,” but they never want to acknowledge the grisly reality of what is happening when a woman “chooses” to destroy her child. They like to talk about “a woman’s right to control her own body,” yet they completely ignore the fact that the body of the baby inside her womb is not part of her, but rather a genetically distinct and biologically separate human life. Abortion is about two bodies, not one.

The Alabama abortion bill has the potential to force the Court to reconsider its indifference to the natural law, and to therefore implement actual rather than illusory protections for the right to life of the unborn.

References:

1. Stern, Mark Joseph. “Abortion Bans Are Wildly Unpopular. How do Republicans Keep Passing Them?” Slate. June 4, 2019. https://slate.com/news-and-politics/2019/06/alabama-abortion-ban-unpopular-republican-voters-oppose.html

2. Hay, Andrew. “Alabama boycott builds as states retaliate against abortion law.” Reuters. May 16, 2019. https://www.reuters.com/article/us-usa-abortion-alabama-boycott-idUSKCN1SM2V8

3. Lai, K. K. Rebecca. “Abortion Bans: 9 States Have Passed Bills to Limit the Procedure This Year.” New York Times. May 29, 2019. https://www.nytimes.com/interactive/2019/us/abortion-laws-states.html

4. Beck, Caroline and Sell, Mary. “Alabama Republicans Expect Challenge if Abortion Bill Becomes Law.” TuscaloosaNews.com. April 7, 2019. https://www.tuscaloosanews.com/news/20190407/alabama-republicans-expect-challenge-if-abortion-bill-becomes-law

5. Wise, Justin. “Alabama GOP lawmaker files bill that would ban nearly all abortions.” The Hill. April 2, 2019. https://thehill.com/homenews/state-watch/437059-alabama-gop-lawmaker-files-bill-that-would-ban-nearly-all-abortions

6. Roe v Wade, 410 US 113, 156-157, (1973)

7. Roe v Wade, 410 US 113, 158, (1973)

8. Roe v Wade, 410 US 113, 159, (1973)

9. Alabama Human Life Protection Act, HB 314, Regular Session, (2019) http://alisondb.legislature.state.al.us/alison/searchableinstruments/2019RS/bills/HB314.htm

10. Roe v Wade, 410 US 113, 133-134, (1973)

11. United States Catholic Conference, Inc. – Libreria Editrice Vaticana. Catechism of the Catholic Church. San Francisco: Ignatius Press, 1994, paragraph 2271.

12. Kalpagian, Mitchell. “The Right to Life and the Natural Law.” University Faculty for Life, accessed June 12, 2019, p.5. www.uffl.org/vol 9/kalpagian9.pdf

13. Roe v Wade, 410 US 113, 163, (1973)

14. 10. Roe v Wade, 410 US 113, 164-165, (1973)

15. “Fact Sheet: Do You Know Roe?” USCCB: Issues and Action: Human Life and Dignity: Abortion. July 2018. http://www.usccb.org/issues-and-action /human-life-and-dignity/abortion/upload/Do-You-Know-Roe_07-18-18.pdf

16. Hausknecht, Bruce. “Sorry Snopes, But New York’s Abortion Law Means on Demand Any Time Before Birth.” Focus On The Family. January, 2019. https://www.focusonthefamily.com/socialissues/life-issu…Sorry Snopes, But New York’s Abortion Law Means on Demand Any Time Before Birth

17. “FS01 Abortion in the US” NRLC. January, 2019. https://www.nrlc.org/uploads/factsheets/

18. West, Perry. “Alabama bill would ban all abortions except for ‘serious health risk’.” Catholic News Agency. April 3, 2019. https://www.catholicnewsagency.com/news/alabama-bill-would-ban-all-abortions-except-for-serious-health-risk-86880

19. “American Baptist Resolution Concerning Abortion and Ministry in the Local Church.” American Baptist Churches USA, accessed June 12, 2019. https://www.abc-usa.org/policy-statements-and-resolutions/AMERICAN BAPTIST RESOLUTION CONCERNING ABORTION AND MINISTRY IN THE LOCAL CHURCH

20. Reardon, David C. “Major Physical Affects Related to Abortion. ” Abortion Facts. January 19, 2018. https://www.abortionfacts.com/reardon/Major Physical Affects Related to Abortion

21. Reardon, David C. “The After Effects of Abortion.” Abortion Facts. January 19, 2018. https://www.abortionfacts.com/reardon/After Effects of Abortion

22. “The abortion-breast cancer link.” LifeFacts, accessed 11 June, 2019. https://www.lifesitenews.com/resources/abortion/the-abortion-breast-cancer-link

Virginia is NOT a gun-friendly state

One of the most important ongoing fights against progressives is the battle to protect the Second Amendment to the Constitution. Although the 2008 Heller case was initiated over the issue of possessing firearms for the purpose of self-defense in the home, it was especially reassuring to see that Justice Scalia in the majority opinion went to great lengths explicating the foundational justifications for and meaning of the Second Amendment. [1] However, the Heller case did not address the scope of legitimate actions that can be taken in self-defense. This is an important topic – after all, what good is it to possess a firearm if the laws in your state do not strongly support its use in self-defense?

Recently I looked into concealed carry reciprocity laws in preparation for travel to other states from my home state of Virginia. I happened across the U. S. Concealed Carry Association advertisements for self-defense insurance, and was intrigued, but what really got my attention was the video of a retired law enforcement officer named Buddy who never fired his gun during a conflict – he merely held it in a safe position, with the safety on. He did not even threaten with it, yet was still arrested for aggravated assault. [2] That seemed to me to indicate a rather harsh self-defense environment.

I did not think that I would have to worry about a problem like this in Virginia, since I assumed that Virginia self-defense laws would mirror Virginia’s firearm possession laws in the sense that they are supportive of self-defense and relatively permissive. Guns and Ammo magazine reports that open carry is legal, concealed carry is “shall issue,” and “Virginia gets maximum points for a very strong Castle Doctrine law.” [3] Similarly, the Virginia Citizens Defense League considers Virginia self-defense protections to be “excellent.” [4]

However, I decided to check, just in case, and take a good look at the laws governing how a gun, or any deadly weapon, may be used in self-defense. And what I found was eye-opening. I am not a lawyer, so perhaps a lawyer in this field would have a different view, but from a simple common-sense perspective what I read in the Virginia law indicates that using a gun in self-defense can be extremely risky and life-changing.

My first and most important takeaway is that any armed citizen in Virginia should have ready access to a lawyer competent in the field of self-defense. This can be inexpensively obtained via self-defense insurance, such as that offered by USCCA, and I consider it to be indispensable.

Several principles governing self-defense in Virginia which I think are absolutely critical to understand were cited in a fairly recent case from 2001, Commonwealth v. Sands:

“The “bare fear” of serious bodily injury, or even death, however well-grounded, will not justify the taking of human life.” [5]

“There must [also] be some overt act indicative of imminent danger at the time.” [6]

“In the context of a self-defense plea, “imminent danger” is defined as “[a]n immediate, real threat to one’s safety . . . .” [7]

“There must be . . . some act menacing present peril . . . [and] [t]he act . . . must be of such a character as to afford a reasonable ground for believing there is a design . . . to do some serious bodily harm, and imminent danger of carrying such design into immediate execution.” [8]

“The requirement of an overt act indicative of imminent danger ensures that the most extreme recourse, the killing of another human being, will be used only in situations of necessity. “The plea of self-defense is a plea of necessity and the necessity must be shown to exist or there must be shown such reasonable apprehension of the immediate danger, by some overt act, as to amount to the creation of necessity.” [9]

The following principle, from another Virginia case, is also critically important to understand, because it deals with the amount of self-defense force that can be used:

“Moreover, the amount of force used must be reasonable in relation to the harm threatened.” [10]

These principles can be categorized simply as imminent danger, overt act, and proportionality. In the following analysis, I am assuming that the person exercising self-defense bears no fault for initiating hostilities.

Imminent Danger and Overt Act

In spite of the defining statements from the case law above, the exact meaning of “imminent” is still not completely clear to me. Must a victim refrain from using deadly force until the last possible moment? If someone is beating on a car in a road rage incident with a baseball bat, is that imminent danger? If someone breaks into a home in the middle of the night, would that be considered imminent danger?

People generally use the terms “immediate” and “imminent” interchangeably. Massad Ayoob, one of the most credible of self-defense experts, has an oft-cited quote outlining conditions for use of self-defense with deadly force:

“The use of lethal force that can end in homicide is justified in the situation of immediate, otherwise unavoidable danger of death or grave bodily harm to the innocent.” [11]

But in Virginia, there is case law indicating that “immediate” does not have exactly the same meaning as “imminent:”

“[T]he term ‘imminent’ has a connotation that is less than ‘immediate,’ yet still impending and present.” [12]

So, with “imminent,” maybe I have a little more time available than with “immediate,” but the near-term certainty of the threat is maintained. All are agreed that a vague threat of future harm is not imminent, but a threat that is more well defined and connected with an overt act even though it is not immediate (that is, happening “now”), may still be imminent. In the end it will depend upon what the Commonwealth’s Attorney or the court proceeding will eventually find to be reasonable. This is not necessarily obvious or simple. In the case of Sands v. Commonwealth cited above, the jury found the defendant guilty because the threat was not imminent, the Appeals Court reversed because they found the threat to be imminent, and the Supreme Court of Virginia reinstated the conviction because they found there was no overt act which was imminent even though the danger may have been imminent. Clear answers to this key element of the law which can determine the outcome of a case will likely not be available when the choice to exercise deadly force has to be made.

The term “overt act” is not precisely clear either. A good case in point is Clark v. Commonwealth, wherein a defendant argued her innocence because she had not committed a threatening act, and the Virginia Court’s stated policy is that “because assault requires an overt act, words alone are never sufficient to constitute an assault.” [13] She was initially found guilty, then the Court of Appeals reversed the judgement, then the full Court of Appeals upon rehearing affirmed the original judgment, and finally the Supreme Court confirmed the conviction. The controversy had to do with exactly what constitutes an overt act, and whether the defendant’s behavior over a period of two days amounted to an overt act. The point is that if even the Virginia Court system takes four tries to finally determine the existence of an overt act, then anyone acting in real time cannot expect with any certainty to end up on the right side of the law.

These examples show that the actual meanings of these important principles as applied to a particular case are not immediately obvious, even to a court, until the final outcome of the case is decided. A person claiming self-defense has to realize that he is facing an inherently risky legal environment.

Proportionality

Vrginia law requires in cases of self-defense that “the amount of force used must be reasonable in relation to the harm threatened.” [10] In other words, the force used for self-defense must be proportional in the sense that it can be no more than necessary to alleviate the threat. This is another key area in which outcomes may be highly uncertain and render self-defense dangerously risky. Proportionality requires a person defending themselves in a tense, dangerous conflict to somehow make a calculation about reasonable force right in the heat of the moment. What if the assailant is pointing something but it’s not clear whether it is a gun or a knife? How is it possible to make an instantanteous assessment of an attacker’s physical capabilities? When is it “proportional” to use a gun against an attacker armed with a knife? This proportionality requirement complicates the self-defense decision, and forces a defender to account for the criminal’s well-being at the same time that he is concerned about how best to make his own defense. A self-defense incident that took seconds will be fought over by lawyers and decided upon by jurors in court who were not there, who were not faced with a life or death decision, and who have no time limit to decide the right level of force. There is simply no way that a defendant can be confident that the court will reach the same conclusion he did.

This concept requiring a careful reasonable force assessment in the face of an imminent self-defense scenario is completely at odds with the advice from experts recommending the most effective means of self-defense. Discussions by these people center around what it takes to stop an aggressor. For example, a single bullet is often not sufficient to stop an attacker, but a single bullet can immediately stop him if it causes enough brain or spinal cord damage. [14],[15],[16] How many of us are so expert that we can accomplish a head or neck shot under pressure? A standard rule of thumb is that an assailant can cover a distance of 21 feet in one and a half seconds, rendering a gun useless if it is not already drawn before he gets close. [11] Considerations such as these indicate that if a dangerous conflict cannot be avoided, then use of overwhelming deadly force is a quite reasonable approach to effectively neutralize the threat, and precise calculations about how much force is necessary are irrelevant when it may take multiple shots to stop a deadly force threat. But under Virginia law, the jury will have to be convinced that the use of deadly force was proportional, even if the defendant’s intent was only to stop his attacker.

Finally, Virginia does not have a Castle doctrine statute, and it appears that the Virginia law for use of deadly force for self-defense in the home is no different than for any other self-defense action. [17] One additional concern has to do with civil lawsuits. An armed citizen who injures a criminal assailant is not provided immunity in Virginia from a lawsuit for civil damages brought by that person. [18],[19]

The above review of Virginia self-defense law should make it clear that Virginia imposes severe restrictions on the use of deadly force for self-defense. Further, the definitive meaning of these restrictions may be difficult to determine in a given case, and this injects a high level of uncertainty into the process and the final case outcome.

Andrew Branca notes that most legitimate self-defense cases never go to trial because the prosecuting attorneys generally don’t bring charges if they determine that legitimate self-defense has been exercised. [20] A recent case in Frederick County, Virginia illustrates exactly this outcome. A woman broke a bedroom window and reached inside a home, and was then killed by the homeowner who fired through the window with a shotgun. The Commonwealth’s Attorney used jury instructions for justifiable self-defense to make his determination not to bring charges. [21],[22] To which I say “thanks be to God” for Virginia’s rural, common-sense Commonwealth’s Attorneys. However, given the risks involved if a self-defense case does go to trial, armed citizens should not have to rely on the judgment of a particular Commonwealth Attorney. They should instead have the full force of the law supporting their self-defense actions.

There are some things that have been done in other states to improve the self-defense environment which could be implemented in Virginia.

In Utah, deadly force may be used to defend against death or serious injury or forcible felony. The list of forcible felonies includes burglary, which is illegal entry to a property with intent to commit certain crimes. [23] This expands the latitude for use of deadly force for self-defense in cases where a property has been illegally entered, because burglary does not exclusively involve deadly force or serious bodily injury.

Utah law also allows a citizen to warn “another of the actor’s possession of a deadly weapon in order to prevent what the actor reasonably perceives as a possible use of unlawful force by the other.” [24] There are two key points here. This warning can be given for “unlawful force,” not just deadly force. Also, such a warning is specifically excluded from being characterized as threatening. This law provides the defender the option of defusing the situation before it gets to the point of imminent death or serious bodily injury.

In Arizona, a similar law labeled “defensive display” has been introduced as a legitimate means of self-defense. This law allows warning the aggressor or physically holding or drawing the firearm. The operative language which supports self-defense is that such display is allowed “to protect yourself against another person’s use or attempted use of unlawful physical or deadly physical force.”[25] Note that this defensive behavior is permissible when confronting unlawful force as well as deadly force.

In Utah, the use of deadly force for protection inside the home is much less constrained than in Virginia. In the case of a home invasion, deadly force is justified for a series of reasons, many of which are less serious than the perception of immediate death or serious bodily injury. There is also a presumption of reasonable defensive action under these conditions:

“The person using force or deadly force in defense of habitation is presumed for the purpose of both civil and criminal cases to have acted reasonably and had a reasonable fear of imminent peril of death or serious bodily injury if the entry or attempted entry is unlawful and is made or attempted by use of force, or in a violent and tumultuous manner, or surreptitiously or by stealth, or for the purpose of committing a felony.” [26]

This presumption within the Utah statute recognizes the special level of security that should be enjoyed within the home and incentivizes any intruder against breaking into a home. This greatly reduces the risk when it is necessary to employ deadly force against an intruder within the home.

Another critically important self-defense protection provided by Utah is that a person injured or killed committing a crime cannot recover civil damages against a person legitimately defending life or property. [27]

In summary, the armed citizen in Virginia should not presume that the laws governing self-defense are as supportive as the laws governing possession of a firearm. In fact, the legal conditions for use of deadly force in self-defense are structured to protect the life of the criminal, except for the extreme circumstance of imminent death or serious injury. This thought process embedded in the self-defense law incentivizes and provides the advantage to the criminal, because he does not have to abide by the self-defense restrictions. The asssailant does not have to wait until death or serious bodily injury is imminent; he does not care about proportionally how much force to use; he has no qualms about whether or not to use a deadly weapon to threaten; he knows that his victim has to be concerned about not using too much force; and if he is injured, he knows that he can sue his victim for damages.

There is no doubt in my mind that the self-defense law in Virginia could be much stronger than it is. A strong statutory implementation of fair self-defense principles would contribute greatly to the preservation of our personal liberties in Virginia.

References:

1. District of Columbia v. Heller, 554 US 570 (2008)

2. Buddy Sheppard Video. U. S. Concealed Carry Association.
https://www.usconcealedcarry.com

3. Wood, Keith. “Best States for Gun Owners.” Guns and Ammo. November 3, 2017. http://www.gunsandammo.com/second-amendment/best-states-for-gun-owners-2017/

4. “Virginia.” US State Pages. http://www.handgunlaw.us

5. Commonwealth v. Sands, 262 VA 274, 736, 553 S.E.2d 733 (2001)

6. Commonwealth v. Sands, 262 VA 274, 736 553 S.E.2d 733 (2001)

7. Commonwealth v. Sands, 262 VA 274, 736 553 S.E.2d 733 (2001)

8. Commonwealth v. Sands, 262 VA 274, 736, 553 S.E.2d 733 (2001)

9. Commonwealth v. Sands, 262 VA 274, 737 553 S.E.2d 733 (2001)

10. Diffendal v. Commonwealth, Va.App. 417, 421, 382 S.E.2d 24, 26 (1989)

11. “Step One – The Central Ideas: Ability, Opportunity, Jeopardy, and Preclusion.” UseofForce.us. https://useofforce.us/3aojp/

12. Sam v. Commonwealth, 13 Va. App. 312, 325, 411 S.E.2d 832, 839 (1991),

13. Clark v. Commonwealth, 691 S.E.2d 786, 789 (2010) 279 Va. 636

14. Michalowski, Kevin. “What Does It Take To Stop An Attacker? (One Round Typically Doesn’t Do It).” US Concealed Carry. February 24, 2014.
https://www.usconcealedcarry.com/take-stop-attacker-one-round-typically-doesnt/

15. Vail, Sydney, M.D. “Stopping Power: Myths, Legends, and Realities.” Policemag. January 16, 2013.
http://www.policemag.com/channel/weapons/articles/2013/01/stopping-power-myths-legends-and-realities.aspx

16. Ellifritz, Greg. “An Alternate Look at Handgun Stopping Power.” Buckeye Firearms. July 8, 2011.
https://www.buckeyefirearms.org/alternate-look-handgun-stopping-power

17. “Castle Doctrine.” American Firearms Training: Concealed Carry + Gun Safety Resources. https://www.concealedcarryonline.com/virginia/virginia-castle-doctrine/

18. “Self Defense and ‘Stand Your Ground’.” National Conference of State Legislatures. March, 9, 2017.
http://www.ncsl.org/research/civil-and-criminal-justice/self-defense-and-stand-your-ground.aspx

19. Branca, Andrew. “Self Defense Immunity Laws: Which Sates Protect You Best?” Legal Insurrection. July 19, 2013.
https://legalinsurrection.com/2013/07/self-defense-immunity-laws-which-states-protect-you-best/

20. Branca, Andrew. “That Odd Duck, Ohio: Self-Defense as an Affirmative Defense (Kind Of).” Legal Insurrection. July 31, 2013.
https://legalinsurrection.com/2013/07/that-odd-duck-ohio-self-defense-as-an-affirmative-defense-kind-of/

21. Goodenow, Evan. “Alleged drug dealer cleared in killing at his Frederick home.” The Winchester Star. May 10, 2018.
http://www.winchesterstar.com/news/frederick/alleged-drug-dealer-cleared-in-killing-at-his-frederick-home/article_0194cf54-5622-5cb3-b213-7ad16171aa2b.html

22. “Virginia Jury Instructions – Self-Defense – Defendant without Fault.” Rockbridge County and the City of Lexington Commonwealth’s Attorney.
http://lexrockca.net/wp/faqs-resources/virginia-jury-instructions/#_Defenses_%E2%80%93_General – Self Defense – Defendant without fault

23. Utah Code 76-2-402
https://le.utah.gov/xcode/Title76/Chapter2/76-2-S402.html

24. Utah Code 76-10-506
https://le.utah.gov/xcode/Title76/Chapter10/76-10-S506.html

25. Arizona Revised Statutes 13-421
https://www.azleg.gov/viewdocument/?docName=https://www.azleg.gov/ars/13/00421.htm

26. Utah Code 76-2-405
https://le.utah.gov/xcode/Title76/Chapter2/76-2-S405.html

27. Utah Code 78B-3-110
https://le.utah.gov/xcode/Title78B/Chapter3/78B-3-S110.html