By Howard J. Fezell
Go to www.2ndAmendment.net for other essays on your right to keep and bear arms.
Gun prohibitionists would have you think that the only legitimate purpose for owning a firearm is "sporting purposes" such as hunting or target shooting. However, the Second Amendment was not included in the Bill of Rights so people could go duck hunting or punch holes in paper targets.
There is a lot more to owning a firearm than "sporting purposes". For most people, a firearm is the most practical and effective means that they have of defending against a criminal attack.
The purpose of this essay is to discuss two federal appellate court opinions which have recognized defense of one's person against a criminal assault as being a fundamental right.
the first of these cases, United States v. Gomez, the United
States Court of Appeals for the Ninth Circuit not only recognized the right
guaranteed by the Second Amendment as being individual in nature,
but held that it embodies the right to self-defense.
United States v. Gomez, 81 F.3d 846 (9th Cir. 1996)
The Second Amendment embodies the right to defend oneself and one's home against physical attack -- particularly if a citizen shows specifically that organs of government charged with providing protection are unable or unwilling to do so.
Steven Paul Gomez, a convicted felon, was offered a large sum of money and drugs by one Imran Mir to kill witnesses who were expected to testify against Mir in a drug case. With no expectation of any reward Gomez notified authorities of this offer and agreed to help federal agents gather evidence against Mir. Once the government thought it had enough evidence against Mir, it gave Gomez $2,500.00 and sent him on his way.
The following day the Justice Department filed an indictment against Imran Mir which disclosed Gomez's full and true name. However, the Justice Department never bothered to tell Gomez that his identity had been revealed.
Gomez soon found out -- after he began receiving death threats, and was accosted by a man with a gun. Gomez begged the authorities to take him into protective custody, to no avail.
Gomez literally began running for his life, staying at friends' houses for short spells or living on the streets and sleeping in parks. He resorted to telling his parole agent that he was using illegal drugs to be able to see him. As a result he was sent back to jail for violating parole. While in jail he received a written death threat. Shortly after his release, one of Gomez's friends received a death threat meant for him. In the words of the U.S. Court of Appeals, "In fear for his life and not knowing what else to do, Gomez made a fateful decision: He took possession of a twelve-guage shotgun that had been stored at a friend's house." 81 F.3d at 849
At about this time federal authorities determined that they still needed Gomez's help against Mir and went looking for him. When two federal agents tried to serve Gomez with a subpoena they found him at a friend's house carrying the shotgun. They drew their sidearms and ordered Gomez to put up his hands. He ran into the house, discarded the shotgun, and ran away. The shotgun was found during a search of the house and Gomez was taken into custody the next day.
Gomez had been in possession of the shotgun for two days.
Gomez was indicted on two counts of violating 18 U.S.C. Sec. 922(g)(1); one each for possession of the shotgun and shotgun ammunition. Before his trial date, Gomez's attorney motioned the district court for permission to introduce evidence showing that his possession of the shotgun was justified. The motion was denied, and Gomez pleaded guilty to one count, reserving his right to appeal the district court's denial of his motion.
Gomez argued successfully on appeal that he should have been able to present evidence of death threats in order to make out a case that his possession of the shotgun was justified either by the defenses of duress or necessity.
In doing so, the U.S. Court of Appeals held that the federal statute under which Gomez was charged:
not pass constitutional muster were it not subject to a justification
defense. The Second Amendment embodies the right to defend oneself and
one's home against physical attack. . . . . .
In a modern society, the right to armed self-defense has become attenuated
rely almost exclusively on organized societal responses, such as the police, to
protect us from harm. . . . . .
The possession of firearms may therefore be regulated, even prohibited,
we are "compensated" for the loss of that right by the availability of organized
societal protection. The tradeoff becomes more dubious, however, when a citizen
makes a particularized showing that the organs of government charged with
providing that protection are unwilling or unable to do so. . . . .
At that point, the Second Amendment might trump a statute prohibiting the
ownership or possession of weapons that would be perfectly constitutional
under ordinary circumstances.
81 F.3d at 850, n.7 (emp. added)
Note: for the text of one of the law review articles relied upon by the Court in the foregoing passage, go to the home page and under Law Review Articles and access: Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637, 646-46 (1989). The other one, Lund, The Second Amendment, Political Liberty, and the Right to Self-Preservation, 39 Ala. L.Rev. 103, 117-120, 123, 130 (1987) should be accessible at any good university or federal district court law library.
What is referred to as the "justification" defense would require Gomez to show: (1) that he was under unlawful and present threat of death or serious bodily injury; (2) he did not recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) he had no reasonable legal alternative; and (4) there was a direct causal relationship between the criminal action and the threatened harm. 81 F.3d at 851.
There was no dispute that the threat against Gomez was unlawful or, if carried out, would have caused his death or serious bodily injury. Furthermore, the Circuit Court of Appeals disagreed with the district judge's holding that the danger was not immediate enough since no one was actually hold a gun on Gomez, that the threats were relayed over the phone or through others, and all of the threats were more than two days old.
The Circuit Court of Appeals noted that "it was unlikely that Mir would cool off and lose interest in Gomez. Gomez had already received numerous threats over an extended period of time; that he hadn't been threatened in the last hour or the last day didn't mean that the danger had abated. Mir obviously meant business." 81 F.3d at 852
The Circuit Court of Appeals also noted that Gomez did not recklessly place himself in danger by advising those from whom he sought help of his predicament since it was the government's naming him in an indictment that "spilled the beans". Id. It also held that there was a direct causal relationship between the death threats and the steps Gomez took to avoid them. 81 F.3d. at 853 Gomez also threw away the shotgun as soon as he was accosted by federal agents with a subpoena. Id.
Was there a reasonable legal alternative for Gomez other than taking the shotgun at his friends house?
The Circuit Court of Appeals noted that "Gomez didn't rush out to arm himself as soon as he realized his life was in danger; he tried many other avenues first." Id. Gomez went to the authorities for help, including the U.S. Customs Service, the county sheriff, and his parole officer. He sought the help of two churches. Since he was on parole he could not leave California.
the words of the Circuit Court of Appeals, "If Gomez's story is believed,
he was privileged to arm himself because `a history of futile attempts
revealed the illusionary benefits of the alternatives'". Id.
United States v. Panter, 688 F.2d 268 (5th Cir. 1982)
Even a convicted felon reacting out of reasonable fear for his life or safety in the course of a conflict he did not provoke may take temporary possession of a firearm to defend himself.
Lester Panter was a convicted felon. On March 28, 1980 he was tending bar at the "Roadrunners Lounge" in Jackson County, Mississippi.
A man by the name of Bud Lins was in the bar and had been drinking heavily. (He was also out on bond pending his appeal of a murder conviction.) Lins went up to Panter and after a brief argument stated, "Well, you aint' done me right. I'm going to kill you." Lins then pulled out a pocketknife and stabbed Panter in the abdomen. Panter began to fight back and ended up on the floor underneath Lins. He reached underneath the bar where for a club he knew was stored there. In the words of the Court: "At this point providence intervened. Panter's hand fell not upon the intended club, but rather upon a pistol. Three shots subdued Lins, who died the next day." 688 F.2d at 269.
Immediately after the shooting, Panter placed the pistol on the bar where it was found by the police. Panter never touched the gun (which belonged to another employee) either before or after his life-threatening encounter with Mr. Lins.
U.S. Justice Department from prosecuted Lester Panter for violating 18 U.S.C. Sec. 1202(a)(1)(possession of firearms by convicted felons).
Panter's jury trial, the federal district judge first instructed the jury
that it "should not consider the defendant's reasons for possession
of the firearm", but inexplicably also gave the instruction requested
by the defense that:
the defendant in this case . . . gained temporary control of a gun
under the circumstances where he was reasonably reacting out of a reasonable
fear for the life and safety of himself or others, and if you further find that the
defendant did not continue to possess the gun after the emergency conditions had
vanished, then you should vote to acquit the defendant."
688 F.2d at 270
Panter was convicted and took an appeal. The U.S. Court of Appeals for the 5th Circuit described the above instructions as being "irreconcilable" and that "they espouse diametrically opposing theories of the law." Id. It held that instructions to a jury "must be consistent and not misleading." Id.
Noting that the error in instructing the jury was not insignificant, the appellate court assumed that the jury paid attention to the government's instruction and ignored Panter's reason for possessing the firearm.
In reversing Panter's conviction and remanding the case to the district court for a new trial, the United States Court of Appeals for the Fifth Circuit held:
hold today that where a convicted felon, reacting out of a reasonable fear
for the life or safety of himself, in the actual physical course of a conflict that he
did not provoke, takes temporary possession of a firearm for the purpose or
in the course of defending himself he is not guilty of violating Sec. 1202(a)(1).
688 F.2d at 272 (emp. added)
remanding the case for a new trial Court of Appeals emphasized that its
holding protects someone like Panter "only for possession during the time
he is endangered." However, the Panter
decision affirms that everyone (even convicted felons) have a fundamental right to self-defense.
Both Gomez and Panter affirm that self-defense is a fundamental right, even for convicted felons (although they must make a strong showing to justify their possession of a firearm).
It is also significant that a United States Circuit Court of Appeals would recognize that "the Second Amendment embodies the right to defend oneself and one's home against physical attack" since this is a right exercised by individuals as opposed to States.