CUFOA

Canadian Unlicensed Firearms Owners Association
Association canadienne des propriétaires d’armes sans permis

Armes for Their Defense;
An Inherited, Historical, Canadian Right

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Postmodernism and the Model Penal Code v.

The Fourth, Fifth, and Fourteenth Amendments—and the Castle Privacy Doctrine in the Twenty-First Century

 

73 UMKC L. Rev. 1073 (2004-2005)

 

 David I. Caplan* and Sue Wimmershoff-Caplan**

 

 

I.  PROLOGUE

 

The poorest man may in his cottage bid defiance to all the forces of the Crown.  It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter; all his force dares not cross the threshold of the ruined tenement![1]

 

A law-abiding woman living alone is suddenly awakened and confronted in her bedroom by a serial rapist.  She reaches for her pistol only to find it locked and unloaded as state law requires.  She is raped and stabbed.  Finally the rapist leaves.  The woman manages to dial 911, but bleeds to death on her bedroom floor.

 

Suppose that, contrary to the state law, she had kept a loaded firearm in her nightstand, resisted the rapist, and shot and killed him when he turned his back to her.  She could then face conviction under firearm control laws for having illegally possessed the firearm.  She would also face prosecution for using force that was not “immediately necessary for the purpose of protecting [herself] against the use of unlawful force by [the rapist] on the present occasion.”[2]

 

How did the criminal law deviate so far from the common law that even a freed medieval serf[3] had greater rights to possession of personal arms for self defense than many Americans today?  Does the United States Constitution have room for state laws that casually impose legal demands for human sacrifice upon totally blameless crime victims?  Do such laws “shock the conscience”[4] and cry out for a federal remedy?

 

To answer these questions, one must mine seven centuries of English common law to excavate the fundamental principles undergirding the law of self-defense in the home.  For hundreds of years, judges in England and the United States were well grounded in the castle doctrine.  Its precepts were the touchstones for which common law jurists consciously or reflexively reached in cases involving the special status of home defense.

 

In the face of seven centuries of entrenched common law experience, postmodernists, in the moral torpor of deconstructionism,[5] have subverted the fundamental principles that had previously assured the home as a complete sanctuary and fortress against criminal attack.  Postmodern legal deconstructionism became fashionable in the last third of the twentieth century, and spurred many states to embrace Model Penal Code (“MPC”) type departures from the common law.  Those withdrawals from the common law and American colonial law heritage shook the foundations of, and all but demolished, that sanctuary.

 

At the time of the framing of the United States Constitution, all common law authorities upheld the unvarnished, absolute, unqualified right to keep arms in the house for home defense against thieves and stranger-intruders.[6]  This Article shows how and why this right is inextricably enmeshed with the home privacy castle doctrine.[7]  The castle doctrine and the right to have arms to defend that sanctuary are “fundamental” and “implicit in the concept of ordered liberty” as described in Palko v. Connecticut.[8]  Consequently, these are bedrock fundamental rights that are embedded in the core of the Fourth Amendment and substantive due process of law.[9]  The due process clauses of the Fifth and Fourteenth Amendments protect these rights, as they stood at the time of the framing, from deprivations, infringements, erosion, or chilling by either the federal or the state governments—whether by legislative, executive, or judicial acts or decrees.[10]  In a variety of contexts, the U.S. Supreme Court has held that the common law at the time of the framing of the United States Constitution sets minimum standards for Fourth Amendment privacy rights.[11]  This Article also illustrates that, while in the last half of the twentieth century the United States Supreme Court was actively elaborating upon the umbras and penumbras[12] that emanate from the absolute home-castle-privacy doctrine, the Model Penal Code,[13] as well as similar caselaw and statutes, were actively dismantling and undermining the very foundations of the Court’s home-privacy umbras and penumbras.  Post-Hurricane Katrina the country has reaped the whirlwind of that dismantling and undermining in the total disintegration of human dignity to say nothing of individual human rights.  The chaos, anarchy and barbarism that attend the collapse of civilization followed.[14]

 

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