True Threats, Self-Defense, and the Second Amendment

2020 ◽  
Vol 48 (S4) ◽  
pp. 112-118
Author(s):  
Joseph Blocher ◽  
Bardia Vaseghi
Keyword(s):  
First Amendment ◽  
Mental State ◽  
Mens Rea ◽  
Second Amendment ◽  
Self Defense

Does the Second Amendment protect those who threaten others by negligently or recklessly wielding firearms? What line separates constitutionally legitimate gun displays from threatening activities that can be legally proscribed? This article finds guidance in the First Amendment doctrine of true threats, which permits punishment of “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individual.” The Second Amendment, like the First, should not be read to protect those who threaten unlawful violence. And to the degree that the constitution requires a culpable mental state (mens rea) in such circumstances, the appropriate standard should be recklessness.

4. Strict Liability

Criminal Law ◽  
2020 ◽  
pp. 210-229
Author(s):  
Jonathan Herring
Keyword(s):  
Human Rights ◽  
Mental State ◽  
Common Law ◽  
Strict Liability ◽  
Mens Rea ◽  
Human Rights Act ◽  
Human Rights Act 1998

A strict liability offence is one where it is not necessary to prove any mental state of the defendant. All that needs to be shown is that the defendant caused a particular result or carried out a particular act. This chapter discusses the offences that are strict liability; when a court will not presume mens rea; what mens rea will be presumed; the Human Rights Act 1998 and strict liability offences; common law defences and strict liability offences; possession offences; and the arguments for and against strict liability.

3. Mens Rea: The Mental Element

2018 ◽  
Author(s):  
Jonathan Herring
Keyword(s):  
Criminal Law ◽  
Mental State ◽  
Mens Rea ◽  
Criminal Offence ◽  
Legal Term ◽  
Mental Element

Mens rea is the legal term used to describe the element of a criminal offence that relates to the defendant’s mental state. Different crimes have different mentes reae: some require intention, others recklessness, negligence, or knowledge. Some crimes do not require proof of any mental state of the defendant. This chapter considers the following concepts that are used throughout criminal law: (a) intention, (b) recklessness, (c) negligence, and (d) knowledge.

scholarly journals The Queen v Getachew: Rethinking DPP v Morgan

2013 ◽  
Vol 77 (2) ◽  
pp. 151-162
Author(s):  
Kenneth J. Arenson
Keyword(s):  
Mental State ◽  
Mental States ◽  
Mens Rea ◽  
High Court ◽  
Real Possibility ◽  
Fine Line ◽  
House Of Lords ◽  
High Court Of Australia ◽  
Court Of Appeal

In The Queen v Getachew, a recent decision of the High Court of Australia that was soon followed by the Victorian Court of Appeal, the High Court correctly noted that there is a fine line between the mens reas of belief and knowledge which turns upon the degree of conviction with which a belief is held. In particular, the court emphasised that a belief in the existence of a fact or circumstance that contemplates a real possibility or perhaps a higher degree of doubt as to the existence of that fact or circumstance is tantamount to knowledge or awareness that such fact or circumstance may not exist. When applied to the principle enunciated in DPP v Morgan, that type of belief would not be mutually exclusive with the alternative mens reas that require the Crown to prove that the accused was aware that the complainant was not or might not be consenting to the penetration at issue. In Getachew, the High Court merely pointed out that the mens reas of knowledge and belief, though similar in certain respects, are separate and distinct mental states that were incorrectly and inexplicably treated as though they were identical in Morgan and innumerable decisions that have followed and relied upon Morgan since it was decided by the House of Lords in 1976. In the aftermath of Getachew, therefore, the principle that an accused can act with a mental state that is mutually exclusive of the mens rea for rape remains intact. What has changed is that it is knowledge, rather than a mere belief that the complainant is not or might not be consenting, that is mutually exclusive of the requisite mens rea for rape.

Intention vs. Negligence

2019 ◽  
pp. 175-184
Author(s):  
George P. Fletcher
Keyword(s):  
Mental State ◽  
Common Law ◽  
Mens Rea ◽  
Criminal Cases ◽  
Reasonable Person ◽  
The Face ◽  
The Common ◽  
The Law

This chapter explores the role of mental state in criminal cases, considering the concept of negligence. Lawyers trained in the common law tradition are familiar with the concept of mens rea and the maxim actus non facit reus nisi mens sit rea. Literally this means that there is no criminal (or guilty) act without a criminal (or guilty) mind. The problem is that there are both descriptive and normative interpretations of mens rea and of the maxim. The normative or moral interpretation of mens rea holds that the term equivalent to a guilty mind, for example, a basis for blaming the actor for their conduct, is something not possible in the face of the defenses considered in the last chapter. Meanwhile, negligence is based, as in the classic definition from the law of torts, on the conduct of “a reasonable person under the circumstances.” The important point is that negligence is based on the fault of not knowing.

Credible Commitments and the Right to Bear Arms: Viewing the Second Amendment from a Game-Theoretic Perspective

2018 ◽  
Vol 53 (4) ◽  
pp. 1024-1045
Author(s):  
JAMIE LEVIN
Keyword(s):  
Law Enforcement ◽  
The State ◽  
Credible Commitments ◽  
Second Amendment ◽  
Self Defense ◽  
Commitment Problem ◽  
Game Theoretic ◽  
The Government ◽  
The Right ◽  
State Militias

For most of its existence, the Second Amendment was largely ignored by Constitutional scholars. Recently, a veritable cottage industry has developed in which two distinct camps have surfaced: so-called “Standard Modelers,” who argue that individuals have a right to bear arms for self-defense, the defense of the state, and, in the most extreme examples, to overthrow the government should it become tyrannical, and those who view the Second Amendment as a collective right vested in the state militias for the purposes of law enforcement, to protect against foreign aggression, to quell domestic insurrection, and as a check against federal overreach. Despite the enormous gulf between them, both sides agree that the right to bear arms provides a counterbalance against the federal government. This paper uses insights from game theory to shed new light on the adoption of the Second Amendment. The states suffered a commitment problem. They wished to cooperate with each other by founding a new republic, but feared the consequences of doing so: losing their freedom to a powerful government. The Second Amendment militated against the need for a large federal army, acted to counterbalance federal forces, and created the offensive means with which to confront a tyrannical government.

Transitivity Analysis in the text of the 1945 Constitution before the Amendment

2021 ◽  
Vol 2 (2) ◽  
pp. 315-321
Author(s):  
Elwyn Bastian Sinaga ◽  
Silvana Sinar ◽  
Eddy Setia
Keyword(s):  
First Amendment ◽  
Fourth Amendment ◽  
Research Data ◽  
The State ◽  
Human Beings ◽  
The Third ◽  
Second Amendment ◽  
Analysis Technique ◽  
History Of ◽  
Opening Section

The realization of the text of the 1945 Constitution became the history of the birth of the first constitution in the State of Indonesia. The 1945 Constitution text was then amended four times. The first amendment was in 1999. The second amendment was in 2000. The third amendment was in 2001. The fourth amendment was in 2002. Every amendment occurred in the contents section, but not in the opening section. The 1945 Constitution text is a tool for sharing or describing experiences with others. The meaning of the experience is realized in the text of the 1945 Constitution. There is also the purpose of this research, which is to describe the meaning of experience that is in the text of the 1945 Constitution. This research data is in the form of the 1945 Constitution text which has not been amended because it is fundamental and first. The theory used in this study is the Functional Systemic Linguistics (LSF) theory pioneered by Halliday (2014). Furthermore, to analyze the data using the analysis technique of the model of Miles, Huberman, and Saldana (2014). Based on the results of the study found, namely (1) there are six processes in the text of the 1945 Constitution which are dominated by material processes (2) there are three types of participant, namely participants based on the process, participants based on their numbers, and participants based on their form (3) there are the ten types of circumstant are dominated by circumumstan manner and there is no circumstant extent. It is intended that the text of the 1945 Constitution is generally constructed by a material verb along with a circumstance manner and summary angle, the participants of which are human beings.

The Right to Bear Arms

2018 ◽  
Author(s):  
Hugh Lafollette
Keyword(s):  
Gun Control ◽  
Control Measures ◽  
Moral Issue ◽  
Gun Ownership ◽  
Second Amendment ◽  
Self Defense ◽  
The Us ◽  
Us Constitution ◽  
The Right ◽  
Proper Interpretation

I summarize the most prominent arguments for a right to bear arms; then I evaluate them. Many ordinary citizens claim that this right is fundamental. They often cite the Second Amendment to the US Constitution to support their contention. I briefly discuss the Supreme Court’s ruling on the proper interpretation of this amendment. I show that even though it is thought to support pro-gun advocates, it is expressly compatible with a wide variety of gun control measures. It is also tangential to the moral issue. I then explore two philosophical arguments that the right to bear arms is fundamental I focus on the more common and most promising argument: private gun ownership is a vital means of self-defense. I evaluate these arguments. None are wholly convincing.

Criminal Law Basics and the Willful Ignorance Doctrine

2019 ◽  
pp. 7-26
Author(s):  
Alexander Sarch
Keyword(s):  
General Theory ◽  
Criminal Law ◽  
Mental State ◽  
Mens Rea ◽  
Normative Claim ◽  
Willful Ignorance ◽  
Starting Point

Chapter 1 sets the stage. The author’s starting point is the willful ignorance doctrine, since it is the source from which the author will eventually extract his general theory of equal culpability mental state imputation. After explaining core criminal law concepts (particularly the mens rea concepts), the author introduces the willful ignorance doctrine, its history, and the normative claim it is premised on—namely, the equal culpability thesis. Situating this doctrine in the broader criminal law context reveals the questions to be tackled in the book, and the chapter ends by indicating the sorts of answers the author will go on to develop.

Proposition: A Personality Disorder May Nullify Responsibility for a Criminal Act

2010 ◽  
Vol 38 (4) ◽  
pp. 745-759 ◽  
Author(s):  
Robert Kinscherff
Keyword(s):  
Personality Disorder ◽  
Mens Rea ◽  
Criminal Offense ◽  
Self Defense ◽  
Actus Reus ◽  
Moral Culpability

A criminal offense requires two elements. First, it requires proof of misconduct that is specifically prohibited by law (actus reus). Second, it requires proof of sufficient intention or recklessness (mens rea) to warrant assignment of moral culpability for the act. For example, a person who kills another person intentionally is typically guilty of murder, while a person who kills recklessly or in the heat of passion in response to provocation may be guilty of manslaughter, and a person who kills accidentally is not guilty of any crime. Even if the elements of the offense have been proven by the prosecution, the actor may not be punishable if the defense proves that his conduct was either justified (e.g., self-defense) or excused (e.g., duress).

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