by Gila Hayes
The shooting of a young black man by a community watch volunteer in Florida raises as much concern among armed citizens as it does among those bent on painting the shooting as racial injustice or as a hate crime. The Network has received numerous queries from members about the situation, especially in light of the implications immediately raised in the news media about the role of Florida’s stand your ground law in justifying the shooting.
While we’ll not comment on any of that at this time, the Florida issue, along with the brouhaha raised with Indiana Governor Mitch Daniels’ signing of SB1 earlier in March, stirred recollections in my mind of a paper in the American Journal of Criminal Law that I’d run across some years ago. The paper is just 10 ½ pages, plus extensive footnotes, in which its author, David B. Kopel, summarizes nine cases argued before the Supreme Court in the late 1890s that comprise the foundation of many of the arguments supporting armed self defense today.
The paper, copyrighted in 2000, focuses on how one Supreme Court counteracted judicial activism. When I returned to review the paper this week, I felt surprise all over again at how the issues before the Court then are so much the same in principle as those we worry about today. The right to stand your ground when attacked where you have the right to be, cases with racial elements, a furtive movement shooting, and in Starr v. United States, the question of whether resistance is legal in circumstances where it is not clear that the aggressor is a peace officer. The latter is so very interesting in light of the Indiana’s Senate Bill 1, legislation that some are saying reads “nearly word for word” like a Castle Doctrine, that has also spawned a lot of warnings from IN law enforcement concerned that it will be seen as encouraging resistance (See footnote 1).
With so many current events of concern to our self-defense rights, why are some dusty old Supreme Court cases important? First, a bit of history: author Kopel explains in this paper that the nine cases he summarizes represent ones in which the Supreme Court took steps to moderate “hanging judge” Isaac C. Parker, a jurist infamous for extremely lengthy and often over-reaching jury instructions from his Western District of Arkansas bench. Kopel’s paper explains that the Supreme Court eventually overthrew 31 of Parker’s 44 capital cases appealed to them, though that is only half of the 88 sentences of hanging for which Parker is remembered.
An iron judge for a lawless region? One might be tempted to support Judge Parker’s brand of law and order, but Kopel points out that Parker’s decisions “forced juries to bring in guilty verdicts against people who were defending themselves against criminal attack.” Likewise today, with much of America’s armed citizenry firmly in the “law and order” camp, I think we must constantly ask if tools used against crime will not someday be used to infringe on rights of armed citizens.
Among the plaintiffs in the appeals Kopel cites are the minorities of the day: immigrant Poles, Cherokee Indians, a black youth, a man of mixed Indian and white blood, and, yes, whites, as well. Despite indications that the Supreme Court, like the nation of that time, was racist to the core, the Justices held the right to self defense in higher regard. Some of the first gun control laws were enacted to prevent freed slaves from possessing firearms, yet that Court established precedent in these self-defense cases from which we still benefit today, and they did so without regard for the race of the defendant.
One recurring theme is Judge Parker’s jury instructions in several cases in which he considered carrying a handgun indicative of premeditation to kill. Whether or not the defendant failed in not retreating from his attacker, both while on one’s own property as well as in public is another common theme in these cases. Another asks if withdrawing from a confrontation restores the right to use force in self defense, and one challenges the idea that fleeing implies guilt. Explaining the import of these cases, Kopel writes that these cases “were based on issues that went to the core of guilt or innocence.”