Category Archives: Second Amendment

Rep. Mo BrooksMo BrooksLawmakers recall the attack: 'I felt like I was back in Iraq' Capitol Hill shaken by baseball shooting The Hill's 12:30 Report MORE (R-Ala.), who was one of about two dozen GOP lawmakers present when a gunman opened fire on their baseball practice early Wednesday, vigorously defended the Second Amendment after a reporter asked him if it changed his view on the gun situation in America.

"Not with respect to the Second Amendment, Brooks responded. The Second Amendment, the right to bear arms is to help ensure that we always have a republic. And as with any constitutional provision in the Bill of Rights, there are adverse aspects to each of those rights that we enjoy as people, and what we just saw here is one of the bad side effects of someone not exercising those rights properly.

"We are not going to get rid of freedom of speech because some people say ugly things and hurt some peoples feelings, and were not going to get rid of the Fourth Amendment's search and seizure rights because some criminals could go free who should be behind bars, Brooks said at the scene of the shooting in Alexandria, Va.

Rep. Steve Scalise (R-La.), the House majority whip, is recovering from surgery after being shot in the hip, and four others were taken to hospitals after a gunman opened fire on Republican lawmakers practicing ahead of a charity congressional baseball game on Thursday.

At a press conference shortly after Brooks's comments, Virginia Gov. Terry McAuliffe (D) advocated for stricter gun laws in the wake of the shooting.

I think we need to do more to protect all of our citizens, McAuliffe said. I have long advocated this is not what today is about but there are too many guns on the streets. We lose 93 million Americans a day to gun violence. I have long talked about this. Background checks and shutting down gun show loopholes, and thats not for todays discussion, but its not just about politicians. We worry about this every day for all of our citizens.

McAuliffe later clarified that 93 Americans, not 93 million, die every day from gun violence.

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GOP rep defends Second Amendment in wake of shooting - The Hill

In the course of yet another dull, straw-clutching broadside against the right to keep and bear arms, the Atlantics David Frum repeats a commonly asserted myth:

That kind of supposedly defensive, actually aggressive, violence has become an even graver risk after today, in an American society that regards personal arsenals to be at least as much of a human right as the rights of free speech and peaceful assemblyand in actual practice, often amorefundamental right.

This is a popular talking point based upon a popular premise: That the Second Amendment is accorded a latitude that is no other. The trouble for Frum is that its nonsense. As it should be, the First Amendment is extremely broadly interpreted,to the point at which even sedition is legal unless it is accompanied by incitement to imminent violence. In recent years, the courts have prohibitedthe government from banning crushvideos in which kittens are killed with stilettos; they haveprotected the rights of bigots to protest military funerals; and they havegutted the countrys campaign-finance laws on the (correct) grounds that they cant be enforced without undermining core political expression. Before that, in Brandenburg v. Ohio, theyhad outlined speech protections that have no parallel in the history of the world.

Has the same thing happened for the Second, as Frum suggests? Not on your life. Indeed, Second Amendment advocates such as myself could only dream of such a trend. As is clear from his cringeworthy displayson Twitter, Frum does not have even a basic grasp of Americas gun laws, forif he did hed understand just how ridiculous is his claim. ASecond Amendment jurisprudence that echoed or exceeded the First would yield the voiding of almost every one of the thousands upon thousands of gun laws that obtain; itwould put an end to all licensing, requests for cause, andbackground checks; it would nix the prior restraint rules that areimposed in many states; it would open up the right to felons, to children, and to those in institutions; and, crucially, it would meanthat the courts had to usestrict scrutiny when evaluating claims, rather than the thumb-on-the-scales intermediate level that they tend to opt for in cases to do with guns. In practice, the First Amendment is as close to an unalienable right as has ever existed; one can do very little to lose ones shot at enjoying it. The Second, by contrast, is heavily locked down. One can argue that thats good or that, in practice, its inevitable and one can complain that America is far more liberal on the matter of arms than every other free country. But one cannot pretend that, culturally or legally, the Second Amendment is accorded special treatment.

Unless, that is, one doesnt care whats true and whats not.

Originally posted here:
No, the Second Amendment Is Not Given Special Treatment - National Review

Within the whirlwind of the news cycle the anti-Second Amendment refrain has already begun. CNN hosts and the editorial boards at many big newspapers are muttering the gun, the gun, as if the gun is responsible, as if the gun had an evil spirit that convinced this mannot a shooter as so many in the media will call him, but a killer, a would-be murdererto shoot members of Congress and their staff. As if an American freedom is causing some to do evil.

It is too early in this attempt at mass murder to know much about this murderer now confirmed dead, and identified as James T. Hodgkinson his mental state or why he chose to do evil. But it is not too early to see the heroism from Capitol Hill Police and others. It is not too early to see American goodness and even innocence for what it is.

At 7:15 a.m. Rep. Brad Wenstrup and Rep. Chuck Fleischmann, Sen. Rand Paul and Sen. Jeff Flake, and about two dozen others were at Simpson Field in Virginia just outside of Washington, D.C., to practice for the Congressional Baseball Game thats scheduled for June 15 at Nationals Park, a game that has been a tradition since 1909. They were getting ready to put politics aside and to come together again within an American pastime.

Early reports indicate that, from behind a dugout, shots began to shatter the early bright June morning. House Majority Whip Steve Scalise went down, shot in the hip, according to early reports. A congressional aide and two Capitol Police officers were also hit.

Many are already blaming the gun used or gun-rights in general, as if a long-held American freedom is to blame.

None of the congressmen or their staff members were armed. Sen. Rand Paul said that if Capitol Police werent there it would have been a massacre. This killer could have walked around unhindered if that were the case, as has happened too many times before in gun-free zones.

Police investigate a shooting scene after a gunman opened fire on Republican members of Congress during a baseball practice near Washington in Alexandria, Virginia, June 14, 2017. (REUTERS/Joshua Roberts)

The police were there because Rep. Scalise, being a member in congressional leadership, had a security detail.

The gunfight went on reportedly for a mad 10 minutes. The murderer had taken cover and the officers were likely, at least at first, only armed with their sidearms. Witnesses say Rep. Scalise dragged himself as far as he could away from the killer and toward people taking cover.

The police kept the killer pinned down and eventually took him out its not clear exactly how he was taken down.

Police man a shooting scene after a gunman opened fire on Republican members of Congress during a baseball practice near Washington in Alexandria, Virginia, June 14, 2017. (REUTERS/Joshua Roberts)

As soon as the police got the killer, Rep. Flake says he and Rep. Wenstrup, who is also a physician, ran onto the field to help Scalise, to apply pressure to his wound. Other physicians were soon on the scene as first-responders heroically rushed to the scene.

Now the analysis and the speculation has already turned political. Many are already blaming the gun used or gun-rights in general, as if a long-held American freedom is to blame.

Many in the media wont acknowledge that over 100 million Americans now legally own guns for sport or self-defense and that these people are largely safe and responsible.

They also arent likely to report that homicides are more likely to occur in areas with the strictest gun controls in place and they are unlikely to interview the women and others who have unfortunately had to rely on their right to bear arms to fend off attackers.

Police investigate a shooting scene after a gunman opened fire on Republican members of Congress during a baseball practice near Washington in Alexandria, Virginia, June 14, 2017. (REUTERS/Joshua Roberts)

Right now, about 15 million Americans have concealed-carry permits to carry handgunsthis number has been rising fast. Studies show that these people rarely commit violent crimes.

In the aftermath of evil visited upon us like this, it is also easy to forget how good and safe America really is. Any foreigner who has visited Capitol Hill must have been surprised with just how open the city isWashington, D.C., is still often thought of as a big, small town. Congressmen largely walk the sidewalks without security details. If someone wants to meet their representative it can often be arranged. A visitor must simply pass through one security checkpoint in the congressional buildings.

Maybe some of that needs to change, especially in view of recent terrorist attacks, but American freedom is not the problem, but rather it is what we are fighting for.

Frank Miniter is author of "The Future of the Gun" & "The Ultimate Mans Survival Guide". His latest book is,is "Kill Big Brother", a cyber-thriller that shows how to balance freedom with security without diminishing the U.S. Bill of Rights.

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Scalise shot: What the Virginia attack should teach us - the Second Amendment is not the problem, in fact it can ... - Fox News

Liberal writer Matthew Yglesias brought up Senator Rand Pauls support for the second amendment as a way to check tyrannical governments mere hours after the Kentucky Republican and others were shot at while practicing baseball.

A shooter opened fire on Republican lawmakers and staff Wednesday morning as they practiced for an annual charity baseball game. House Majority WhipSteve Scalise and others were shot.

In response to the news, Yglesias tweeted out a June 2016 comment from Paul where he said that the purpose of the Second Amendment was to shoot at the government when it becomes tyrannical. Ygelsias is a co-founder of the liberal news site Vox.

The tweet Ygelsiasreferenced was part ofPaul live tweeting of someone elses speech. One of the Senators staffers confirmed to The Daily Caller News Foundation that the tweet wasntPauls words.

The shooter hit Scalise, congressional staffer Zack Barth, two Capitol Police officers, and lobbyist Matt Mika. The Capitol Police officers, who were part of Scalises security detail, returned fire.

Yglesias did not return requests for comment to TheDCNF.

A self-proclaimed Black Activist tweeted out Pauls old comment as well, indicating Yglesias wasnt alone in his opinion.

Paul was in the outfield when the gunman started firing at GOP lawmakers, hitting Scalise and several others. Paul said the shooter turned the baseball field into a killing field.

I do believe without the Capitol Hill police, it would have been a massacre, Paul said in a television interview after the shooting. We had no defense, no defense at all. We are lucky Scalise was there. This was his security detail. Without them, it would have been a massacre. There was no stopping this guy. We were like sitting ducks. It was a wide open field, its a killing field.

The suspected shooter died from his wounds after being taken to the hospital. Scalise is in stable condition, and Capitol Police officers who were shot defending lawmakers are expected to survive, according to NBC.

Vox falselyclaimed that the U.S. had 11.6 times more mass shootings than actually occurred, according to an analysis previously by The Daily Caller News Foundation.

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Vox Notes GOP Supports 2nd Amendment To Overthrow Gov't | The ... - The Daily Caller

Breitbart News reported that five persons were injured when66-year-oldJames T. Hodgkinson opened fire on Republican House and Senate members who were practicing baseball. Rep.Steve Scalise (R-LA) and four others were injured in the attack. Hodgkinson was shot and killed by police.

SAF sent Breitbart News a statement on the attack:

Todays shooting of Congressman Steve Scalise (R-LA), and others including an aide and two Capitol Police officers is the result of Democratic hate speech toward President Donald Trump and majority Republicans, the Second Amendment Foundation said today.

This hate speech that has been going on since Donald Trump was elected, said SAF founder and Executive Vice President Alan M. Gottlieb. It gets their voter base agitated and this is what happens as a result. Is this just a coincidence this happened on the presidents birthday?

The gunman has been identified as James Hodgkinson of Illinois. A Facebook page belonging to the fatally-wounded suspect suggests that he was a socialist Democrat, and was a follower of Sen. Bernie Sanders. Sanders confirmed that Hodgkinson was apparently a volunteer in his 2016 presidential campaign.

When liberal leftists support the assassination of President Trump on stage what do you expect to happen, Gottlieb stated. Hate speech and actions incite this kind of violence. It is time for Democrats like Reps. Maxine Waters and Nancy Pelosi, Sen. Chuck Schumer, Barrack Obama and Hillary Clinton and many of the talking heads at CNN and MSNBC to shut up.

SAF also observed:

Congressman Scalise and others at the field this morning were lucky to have the protection of courageous Capitol police officers, the good guys with guns who took down a bad guy with a gun, he continued. But what if they hadnt been present?

Congressman Mike Bishop of Michigan, who was at the baseball field, told a reporter, The only reason why any of us walked out of this thing, by the grace of God, one of the folks here had a weapon to fire back and give us a moment to find cover.

Maybe now the anti-gun rights Democrats will support everyones right to carry a firearm for self-defense, Gottlieb said. We are the first line of defense when it comes to personal protection from crazed individuals.

Breitbart News spoke with SAFs Alan Gottlieb about the calls for more gun control that have already been made in reaction to the shooting. He responded, Democrats should ban their hate speech, not our guns for self-defense.

AWR Hawkins is the Second Amendment columnist for Breitbart News and host of Bullets with AWR Hawkins, a Breitbart News podcast. He is also the political analyst for Armed American Radio. Follow him on Twitter: @AWRHawkins. Reach him directly at awrhawkins@breitbart.com.

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Second Amendment Foundation: Alexandria Shooting the Result of ... - Breitbart News

Some things are predictable, some are not.

Not predictable was Wednesday mornings attack on members of Congress and their staffs, assembled for one of the most American of things, a baseball practice.

A gunman identified by authorities as James T. Hodgkinson fired a lot of shots after first asking, according to reports, if the players were Republicans. He learned they were and the gunfire commenced. House Majority Whip Steve Scalise was wounded, along with an aide to Texas Rep. Roger Williams and several others. The alleged gunman was killed.

It was the first shooting of a member of Congress since the 2011 attack on Rep. Gabby Giffords in the most American of settings, a shopping mall. Six people died that day in Tucson, Ariz., and 13 were wounded. The irony (?) is that Giffords was and is a gun owner and a supporter of the Second Amendment, and Scalise has a top rating from the NRA.

Those shootings were unpredictable.

What is totally predictable is the coming avalanche of screams for gun control, an amorphous phrase. If I cup my hand to my ear, I can begin to hear them now.

When you get down to specifics, such as universal background checks, they are unlikely to happen.

How can I predict that? Because the last time it was tried the 2013 billsponsored by Democratic West Virginia Sen. Joe Manchin and Republican Pennsylvania Sen. Pat Toomey it went down to defeat despite the approval of a large majority of Americans.

That relatively mild proposal supported by this gun-owning columnist with a carry permit got shot down (pun intended) largely through the efforts of the National Rifle Association.

If the deaths of 20 children and six teachers at Sandy Hookin 2012 didnt result in legislation, I doubt this will.

The gun-grabbers will blame the gun and call gun violence an epidemic, which it might be in some few areas looking at you, Chicago but is largely unknown in the vast majority of counties around the United States. There are 300 million weapons in the hands of 100 million Americans. That tells you the periodic, and unspeakable, slaughters are an aberration committed by criminals and the mentally unbalanced.

The gun problem is a Gordian knot because it entwines rights protected by the First, Second, and Fourth Amendments.

The only way to ban guns is to revoke the Second Amendment, and I invite anyone who wants to to try. It is almost impossible.

Even if you could ban them, will the U.S. government try to confiscate (buy back) the 300 million out there, as was done with legislation addressing the millions of guns inAustralia and the United Kingdom?

That could kick off a civil war, given the current political mood.

Guns are enshrined in our culture, but I admit the culture is changing.

Although more guns are out there, they are in fewer households.

The majority of Americans dont own guns, but havent been able to thwart the NRA and get access to whats called sensible gun control. I applaud their efforts, but I think they are futile until the culture changes more.

Once upon a time, cultural change was glacial. But when you see how quickly the culture shifted on gay marriage, for instance, there is optimism that America will be able to get stricter gun laws in the foreseeable future.

But a ban, I think, is still a bridge too far.

Published: June 14, 2017 11:02 AM EDT | Updated: June 14, 2017 12:17 PM EDT Philadelphia Daily News

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After a bloody baseball practice, guns remain king, but the culture is changing - Philly.com

Once again, anger coupled with a weapon has unleashed another strike against the heart of what we stand for as a society: democracy.

Again, heavily armed law enforcement, yellow police tape, along with shock, grief and tears are formidable reminders of the aftermath we as a society must deal with after another man with a weapon delivers another grim message.

This time, the gunman used a high-powered rifle to spray a reign of terror over Republican members of Congress while they held a morning baseball practice to get ready for the annual Congressional Baseball Game, a tradition since 1909.

When it was over, House Majority Whip Steve Scalise, R-La., along with two Capitol police officers, Crystal Griner and David Bailey, congressional staffer Zach Barth and lobbyist Matt Mika all were wounded. Scalise and Mika were listed in critical condition as of Wednesday evening.

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The gunman, identified as 66-year-old James T. Hodgkinson III from Illinois, drives home how vulnerable we continue to be as a society of free will where the rights of people are paramount. The gunman was killed, but thankfully no others were. Lawmakers agree that but for the actions of Capitol police on the scene, the carnage could have been much worse.

According to the New York Times, Hodgkinson was distraught over the election of President Donald Trump and he was a supporter of 2016 Democratic presidential candidate Bernie Sanders.

We have been down this road before and though the names of the wounded and the dead change, the message to the United States remains the same: there are too many guns on the streets of America and too many with the wrong fingers on the trigger.

But a division of opinions, even in a hot political climate, shouldnt bring harm to those delivering a message or those supporting it.

So much of what we are and do as a society depends on the trust and allegiance of our fellow man and the ability to walk amongst each other unencumbered. But with more than 300 million guns on the streets and too many in the hands of the wrong people more solutions are needed.

No angry gunman will destroy what we are as a society, nor our determination to continue forth with our values as a nation.

Trump said, in part, we are blessed to be Americans, that our children deserve to grow up in a nation of safety and peace, and that we are strongest when we are unified and when we work together for the common good.

But to do that, Congress must come to grips with the difficulties of the Second Amendment and take action to tighten the nations gun laws.

Here in Connecticut, where we have some of the toughest gun laws in the nation, we are aware of that.

Every bullet that takes away another loved one or takes aim at another long cherished tradition, leaves us more disillusioned about our safety if Congress doesnt do something about the proliferation of guns.

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Editorial: Congress must come to grips with difficulties of Second Amendment - New Haven Register

Media Matters for America

Fox guest says gay people at Pulse vigil "probably don't know what the Second Amendment is" Media Matters for America Most gay people aren't political. Most gay people, you know, they care about pop music and going to the beach. They probably don't know what the Second Amendment is. And so they show up to be together, to celebrate the community, to mourn together and ...

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Fox guest says gay people at Pulse vigil "probably don't know what the Second Amendment is" - Media Matters for America

In the world of boneheaded marketing ploys, this has to rank as one of the boneheadedest.

Kendall Jenner and that dumb Pepsi ad? Move over.

Fliers from Second Amendment Sports, a local gun shop and shooting range, started showing up in mailboxes late last week.

Im just going to describe it verbatim.

The front has large, bold lettering announcing Juneteenth.

Above it is a drawing of an, apparently, African-American man with his arms raised overhead breaking a chain.

A photo of a white mans face has been imposed onto the drawing.

To the side, the flier states, Juneteenth, Dads & Grads Sale June 15th & 17th.

On the back (between clip art of shackled wrists breaking chains) it says:

Celebrate Juneteenth Dads & Grads.

Emancipate yourselves from the oppression of the man.

From your chores, from your school Buy a gun!

Take that boot off your neck and enjoy some great deals!

I found an explainer, sort of, about Juneteenth saying it is recognized mostly by black Americans and commemorates the end of the Civil War and the final Southern state of Texas announcing the emancipation of slaves. (I would argue with that interpretation, which Ill get to.)

It goes on to say that Second Amendment Sports is celebrating the date to remind people that all races at one time in history were enslaved and that freedom comes at a cost.

Buy a firearm and some ammunition and take your power back from a government that would prefer you to be a slave again! says the explainer.

Then theres a convoluted line about states' rights and keeping the Union together, presumably about the Civil War.

Remember Juneteenth, it ends. Know that it has relevance to all men.

So, that cleared up nothing about this ill-conceived ad campaign.

Just as a start, I wondered if Second Amendment had used Juneteenth as a sale-a-bration marketing concept before?

What was the response? Whats the response now?

Who's face is that photoshopped onto the drawing?

I did eventually get an email from Second Amendment Sports owner Matt Janes, who defended the fliers as opening a dialogue about the fragility of freedom for everyone.

He said this is the second year Second Amendment Sports has used the Juneteenth ad campaign and reaction has been "mixed."

"Some people choose to be offended," Janes wrote. "They do not feel it is our place to bring up U.S. history when it pertains to certain subjects. Like it is taboo or exclusive to only some. Others totally understand the meaning behind our advertisement. Others are 'Hunh? What's Juneteenth?'"

As to the face imposed on the drawing: "It is immaterial and largely the point of the image. It could be an ancestor, you, me, our children...that is the importance."

If nothing else, he wrote, he hopes the flier gets people talking.

The entire thing is disrespectful, said Jason Phillips. And to turn it (Juneteenth) into a political message to fan up emotion, which leads directly to more gun sales for them, is sickening.

Reactions on Facebook and elsewhere were similar, a mixture of outrage and derision.

I'm all for standing firm on civil liberties and slapping back government overreach. But I don't think coopting Juneteenth is the way to go.

To me, the flier and tortured explainer are boorish and just plain weird.

I mean, why not hawk high-caliber rifles on Holocaust Remembrance Day as "yellow badge repellant?"

Im not going to argue whether the fliers are also racist.

Anyone who doesnt find them racially offensive will get defensive and claim the other side is overly sensitive.

Thats a spin cycle that never ends.

Instead, hey, what exactly is Juneteenth?

I will admit that I didn't know until I covered the Bill Pickett Invitational Rodeo, an all black rodeo, which happened to be touring in Bakersfield on Juneteenth some years back.

To me, Juneteenth is bittersweet in a lot of ways.

It recognizes the end of slavery, yes.

But it came to 250,000 slaves in Texas on June 19, 1865, two months after the official end of the Civil War.

And 2 1/2 years after the Emancipation Proclamation was issued by President Abraham Lincoln in January 1863.

And the state of Texas certainly did not announce it, as implied by Second Amendment Sports' explainer.

Union Gen. Gordon Granger landed in Galveston with 2,000 troops to enforce the Emancipation Proclamation.

Granger made it his first order of business to stand on a balcony and read aloud:

The people of Texas are informed that, in accordance with a proclamation from the Executive of the United States, all slaves are free. This involves an absolute equality of personal rights and rights of property between former masters and slaves, and the connection heretofore existing between them becomes that between employer and hired labor.

Today, Juneteenth is typically marked with gatherings of family and friends, food, remembrances and prayer.

Its a recognition, a friend told me.

That sounds right. A recognition. Not a door buster.

Opinions expressed in this column are those of Lois Henry. Her column runs Wednesdays and Sundays. Comment at http://www.bakersfield.com, call her at 661-395-7373 or emaillhenry@bakersfield.comfollow her on Twitter @loishenry or on Facebook at Lois Henry.

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LOIS HENRY: Use of Juneteenth as marketing ploy to sell guns doesn't go over well - The Bakersfield Californian

Yes, says the New Jersey (!) Supreme Court in yesterdays unanimous State v. Montalvo opinion; here are the facts, from the courts syllabus:

This appeal concerns whether an individual may lawfully possess and hold a weapon for self-defense in his home while answering the front door.

Defendant Crisoforo Montalvo and his wife lived directly above Arturs Daleckis and his wife. On the night of March 24, 2012, Daleckis grew agitated by noise emanating from Montalvos unit; he stood on his bed and knocked on the ceiling three or four times. Montalvo then proceeded downstairs and knocked on Daleckiss door. Montalvo picked up a small table belonging to Daleckis and threw it off the front porch, breaking it.

After Montalvo returned to his unit, Daleckis knocked on the door. Montalvo and his wife testified that they heard knocking, kicking, and slamming on the door. Montalvo testified that he became scared for himself, his wife, and their unborn child. As a precautionary measure, Montalvo retrieved a machete from a closet as he moved to answer the door. Daleckis testified that Montalvo pointed the machete at him. Montalvo testified that he kept the machete in his hand, behind his leg, and below his waist while speaking with Daleckis.

Montalvo was acquitted of possession of a weapon for an unlawful purpose (Count One, in the discussion below) but convicted of unlawful possession of a weapon (Count Two). At trial, the judge included a self-defense instruction as to the unlawful-purpose charge but didnt give it as to the unlawful-possession charge.

During deliberations, the jury sent the trial judge a note asking, Second charge, unlawful possession of a weapon, is self[-]defense considered a lawful use?.' The judge responded thus:

I remind you that it is necessary for the State to prove that it, meaning the object[,] was possessed under such circumstances that a reasonable person would recognize that it was likely to be used as a weapon. In other words, under circumstances where it posed a likely threat of harm to others and/or a likely threat of damage to property, you may consider factors such as the surrounding circumstances as well as the size, shape, and condition of the object; the nature of its concealment; the time, place and actions of the defendant; when it was found in his possession to determine whether or not the object was manifestly appropriate for its lawful uses.

This statute is 2C:39-5(d). Section 5(d) prohibits the possession of implements as weapons even if possessed for precautionary purposes, except in situations of immediate and imminent danger.

Although self[-]defense involves a lawful use of a weapon, it does not justify the unlawful possession of the weapon under Section 5(d) except when a person uses a weapon after arming himself or herself spontaneously to repel an immediate danger.

Obviously, there may be circumstances in which a weapon is seized in response to an immediate danger, but ensuing circumstances render its use unnecessary. Under such conditions, the individual may take immediate possession of the weapon out of necessity rather than self[-]defense. However, it would appear that the availability of necessity as a justification for the immediate possession of a weapon, as with self[-]defense, is limited only to cases of spontaneous and compelling danger. Please resume your deliberations.

But the New Jersey Supreme Court held that the judge should have instructed the jury as to self-defense:

[The unlawful-possession statute] prohibits the possession of any weapon, other than certain firearms, when an actor has not yet formed an intent to use [the] object as a weapon [but] possesses it under circumstances in which it is likely to be so used. [This] class of possessory weapons offenses is codified by N.J.S.A. 2C:39-5(d), which states that [a]ny person who knowingly has in his possession any other weapon under circumstances not manifestly appropriate for such lawful uses as it may have is guilty of a crime of the fourth degree. The purpose of Section 5(d) is to protect[] citizens from the threat of harm while permitting the use of objects such as knives in a manner consistent with a free and civilized society. The statute applies to circumstances resulting in a threat of harm to persons or property.

A machete constitutes a weapon within this statutory scheme. See N.J.S.A. 2C:39-1(r) (defining weapon as anything readily capable of lethal use or inflicting serious bodily injury); State v. Irizarry (N.J. App. Div. 1994) (observing N.J.S.A. 2C:39-5(d) concerns weapons such as knives and machetes[] that have both lawful and unlawful uses).

Self-defense is a potential defense to a possessory weapons offense. The Second Amendment guarantee[s] the individual right to possess and carry weapons in case of confrontation, D.C. v. Heller (2008) . It extends to all instruments that constitute bearable arms.

In Heller, the Supreme Court recognized that the inherent right of self-defense has been central to the Second Amendment right. New Jerseys statutes protect the right of self-defense. Generally, the use of force against another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by another.

The use of deadly force for self-defense is justifiable only when the actor reasonably believes that such force is necessary to protect himself against death or serious bodily injury, unless the actor provoked the use of force or knows he can safely retreat. Thus, the defensive conduct must be based on a reasonable belief of potential harm, and the defensive force must be proportional to the offensive force.

Montalvo legally possessed a machete in his home. It is of no matter whether his possession was for roofing or for self-defense because either would qualify as a lawful purpose. [T]he Second Amendment protects the right of individuals to possess weapons, including machetes, in the home for self-defense purposes. Thus, Montalvo had a constitutional right to possess the machete in his home for his own defense and that of his pregnant wife. Because the courts instructions did not convey this principle, the instructions were erroneous.

The State asserts that answering an angry knock at the door with a weapon in hand constitutes possession under circumstances not manifestly appropriate for such lawful uses as it may have. That position is untenable.

The right to possess a weapon in ones own home for self-defense would be of little effect if one were required to keep the weapon out-of-hand, picking it up only spontaneously. Such a rule would negate the purpose of possessing a weapon for defense of the home.

The court sent the case back for a possible retrial, so the jury could decide whether Montalvo indeed just used the machete for defensive purposes. (The state argued, for instance, that he also took it outside and chopped at the porch that he shared with Daleckis; if those were the facts, the court said, that would be an unlawful purpose, but if the facts were as Montalvo claimed they were, his conduct would be lawful self-defense.)

Finally, the court tried to avoid this problem in the future, by directing its Committee on Model Criminal Jury Charges to review and revise the model jury instruction for the unlawful possession offense:

We suggest the following language for the Committees consideration in refashioning the charge: Determining whether the State has proven beyond a reasonable doubt that defendant possessed a weapon in his home under circumstances not manifestly appropriate for a lawful use requires special considerations. Persons may lawfully possess weapons in their homes, even though possession of those same weapons may not be manifestly appropriate outside the home. Using a twelve-inch steak knife in a kitchen to prepare dinner is lawful and possessing it as means of defense in case of a home invasion is lawful as well; carrying the same knife on the street on the way to pick up groceries may not be manifestly appropriate.

Individuals may possess in their homes objects that serve multiple lawful purposes, including the purpose of anticipatory self-defense. In this case, Montalvo possessed at home a machete he used in his roofing job. He was lawfully entitled to possess that machete as a weapon in his home as a means of defending himself and his family from attack as well. The right to possess that weapon, however, does not mean that it can be used without justification.

An individual who responds to the door of his home with a concealed weapon that threatens no one acts within the bounds of the law. He need give no justification for what he is lawfully allowed to do.

On the other hand, an individual may not threaten another with a weapon, even within the confines of his home, without lawful justification. Thus, Montalvo could not answer the door threatening the use of a machete merely for the purpose of inciting fear in another. He could threaten the use of the machete, however, if he had a sincere or reasonable belief that the show of such force was necessary to protect himself or his wife from an imminent attack.

The burden always remains on the State to prove that defendant did not lawfully possess the weapon in his home or, if the weapon was threatened against another, that possession of the weapon was not manifestly appropriate for the purpose of self-defense.

Sounds right to me, at least as to home possession. (What is the proper scope of the Second Amendment outside the home is a hotly contested matter, on which courts have split, and which the Supreme Court is currently being asked to consider, in the Peruta petition.)

Read the rest here:
Second Amendment right to meet people at the door with a machete ... - Washington Post