The debate here is following the old shibboleth of confusing self-defense with vigilantism. I haven't overlooked the point that Eugene consistently couches his hypotheticals so that some law or other allows an offender to be killed at ay time, by any person. This is consistent with vigilantism, not self-defense.
The essence of self-defense is that it is in the moment, unavoidable, and prevents equivalent harm to an innocent victim. Yes, the victim can be considered merely an "accuser," but he is also an eyewitness, a first responder, and in immediate peril. The due process dance occurs later, when a jury decides whether the victim's perception that he was in immediate and major peril was a reasonable one. The second paragraph below simply argues mens rea -- a traditional dividing line between a crime and a tort. Though the "innocently mistaken victim" and the insane may not be guilty of a crime, they are usually found civilly responsible for an unjustifiable homicide, and so still pay a social price. A more cogent question would be, what (other than voter disgust) stops states from enshrining ANY unorthodox police power provision in their state constitutions? Certainly there are a lot of state powers that have no counterpart at all in the federal constitution. Under what provision or hat authority would a federal government intervene and nullify such a change? On May 8, 2013, at 9:48 PM, "Volokh, Eugene" <vol...@law.ucla.edu> wrote: > I’m not sure what authority there is for the proposition that > private choice is the equivalent of due process. For instance, I don’t think > that a rule that says “a person can kill anyone who he chooses to commit a > particular crime can then be killed at will by anyone” – i.e., the punishment > of outlawry but without due process to determine that the person has indeed > committed a crime – would satisfy due process on the theory that the outlawed > person has chosen to commit the crime. Choice can lead to punishment > (including, historically, outlawry) through due process. I don’t think it’s > ever been seen as a substitute for due process. > > But beyond this, we know that force, even lethal force, can > be used in self-defense even against people who haven’t chosen to commit a > crime – people who, it turns out, did nothing wrong but were killed out of a > reasonable mistake by the defender, or people who are so insane that they > can’t be seen as having made a choice at all (even under the narrowest > historically accepted definitions of insanity). So I don’t think choice as > such is doing the work here. > > Eugene >
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