Stupid Question ™
Feb. 23, 2004
By John Ruch
© 2004
Q: Does the Second Amendment mean there’s a right to personal gun ownership?
—See You at the Shooting Range, Columbus, Ohio
A: I’ll probably get shot for saying this, but no, that’s not what the Second Amendment means.
Frankly, to completely editorialize, I wish that’s what the Second Amendment to the U.S. Constitution meant. I’m all for private gun ownership, with reasonable restrictions and thorough licensing. But that just isn’t what that poor, twisted, ungrammatical bastard child of an amendment says.
That’s not to say there’s no right at all to have a gun; obviously, there is. It just isn’t a federal constitutional right. (And, to get technical, the constitution protects rights, it doesn’t create them.)
It’s also not to say that the Second Amendment won’t someday be authoritatively interpreted to mean that. For now, the U.S. Supreme Court is studiously avoiding the subject.
Clearly, there is much sentiment—if based as much on constitutional ignorance as anything else—toward such an interpretation. My 2004 almanac, for Pete’s sake, sums up the Second Amendment as, “Right to keep and bear arms.”
That’s how the National Rifle Association’s web site remembers it to: “The right of the people to keep and bear arms, shall not be infringed,” it repeats in its glossy logo.
Why that weird comma after “arms”? Because the NRA, like so many devotees of this bizarre strain of constitutional revisionism, has left out the entire beginning of the amendment’s language (without noting so with ellipses): “A well-regulated Militia, being necessary to the security of a free State,….”
In short, the amendment is about militias, not about private gun ownership.
Sorry, I had to duck from the flying bullets there for a second.
Nonetheless, there can be no informed doubt about this. All the prior state constitutions that this amendment’s language was borrowed from were about arming militias. The entire debate in the Constitutional Convention about this amendment was about militias. The reason its language is so awkward is because it’s a well-chewed compromise about militias.
Everything James Madison, author of the amendment, had to say about it in print was militia-focused. Here’s his early version of the amendment, before other delegates got their knives out: “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”
It takes heavy-duty selective reading and self-deception to find a non-militia-specific meaning there.
The essence of the Constitutional Convention debate was about federal use of the state militias. (All the constitutional debate boiled down to questions about how powerful a central government should be, as the debate largely still is today.) What the amendment says is that the federal government, essentially, can’t disarm the state militias. (The states, however, were free to.)
Granted, there is the mysterious dropping of the proposed verbiage “for the common defense” after the “bear arms” bit. Modern gun advocates seize on that to say it implies the Founding Compromisers were leaving open individual gun rights. But a more reasonable reading, in context, would recognize that “common defense” was more likely shot down as implying that militias could only be used for national defense of all the states, and not by each state separately for its own purposes.
It was never about some right to personal gun ownership. And why would it be? The vast majority of the population at the time didn’t own a working gun. As historian Garry Wills pointed out in his book “A Necessary Evil: A History of American Distrust of Government” (which is highly critical of the Second Amendment freaks) the American Revolution was plagued by a gun shortage. What few guns militiamen had, they certainly kept—in the local armory.
Only in modern times has the Second Amendment started to gain legal attention. Mushrooming gun ownership is one reason, and the “arms” part dominates current thinking. But it also has gained some attention as a possibly authority on draft laws or the constitutional establishment of a standing peacetime army.
Today, we certainly have a well-regulated militia, the National Guard, and it certainly keeps and bears arms—kept in armories and born on training missions and deployments.
But we also have more private gun ownership than ever before, and, since the post-World War II period, more anonymous urban crime than ever before. The idea that the Second Amendment’s “people” means everybody, “keep” means in your house and “arms” means a home defense weapon has become increasingly appealing. Especially since the private gun ownership boom also includes criminals, and the government response has largely been one of gun restrictions.
That makes the neo-Second Amendment believers understandable, but still incorrect. However, it would be a mistake to dismiss them as mere mis-readers of the amendment.
In the increasing gun-rights frenzy, the NRA and other groups have gathered a bizarre collection of historical footnotes and legal asides to bolster their reading of the Second Amendment. Most of it is idiosyncratic, off-topic and legally meaningless.
The U.S. Supreme Court, which gets the final say, isn’t talking. Last December it declined to review Silveira v. Lockyer, a California case which claimed the right under the Second and Fourteenth Amendments (the latter makes the Bill of Rights applicable to the states) to own a semiautomatic rifle. The 9th U.S. Circuit Court of Appeals had ruled that the Second Amendment applies to militias, not individuals.
The only U.S. Supreme Court case to tackle the private gun ownership issue head-on was U.S. v. Miller (1939), in which it upheld the government’s right to ban sawed-off shotguns, noting that such weapons are not necessary to maintaining a well-regulated militia. (And the weapon was an instrument of crime in the case at hand.)
Some gun-rights groups even still flog truly bizarre cases such as the racist and discredited U.S. v. Cruikshank (1870), an infamous case in which the federal government essentially disavowed its power to control white power from running the South’s state governments.
In that case, the court declared just about every constitutional right, including the Second Amendment, to be “natural rights,” not really constitution-created ones, so the court couldn’t enforce them and the states were free to abridge them—for blacks, specifically. It is true that the case specifically describes a personal right to keep and bear “arms,” but it’s even more true that it was a crazed, twisted attempt to undo the Fourteenth Amendment and could not be taken seriously even in its own time. It has been almost entirely superceded by modern case law.
However, such wackiness does show there is a long-standing assumption, even among jurists (and certainly among average people), that the Second Amendment is all about personal gun ownership. Assumptions are different from directed, focused legal decisions, but they are part of the culture that provide the context for such decisions.
Gun-rights groups have leaped onto the fact that simply by hearing a case like U.S. v. Miller, in which the defendant was an alcohol bootlegger, the court has already recognized that regular citizens, not just Guardsmen, have legal standing to bring Second Amendment cases. To them, this implies that the Second Amendment is about private gun ownership, not militias.
An implication is not a stated decision, they must be reminded. And the other big (if totally bizarre) Supreme Court Second Amendment case, Presser v. Illinois (1886), was primarily about militias, not gun ownership. But they do have a point.
Meanwhile, it’s easy to see why the issue is coming to a constitutional head. Anti-gun advocates are making strong gains, and gun laws are a horrible muddle, varying widely (a simple home-defense gun perfectly legal in one state may be banned as an “assault weapon” in another).
It therefore wouldn’t be terribly surprising if the Supreme Court did eventually rule that there’s a Second Amendment gun ownership right. But considering the clear militia-based language, it’s also not surprising that it hasn’t.
Author’s Note: The Wills book cited above, as well as other sources used for the statement about low gun-ownership rates in the early US, based their claims on the research of Michael Bellesiles, which has been strongly criticized and shown to be conducted so sloppily that it at the very least casts doubt on his conclusions. Wills himself later disavowed Bellesiles’ work. As I consulted only published sources for this particular piece of information, I was unaware of the controversy. That was sloppy on my part, because Wills cited Bellesiles as a source, but I failed to examine Bellesiles’ work directly, in direct contradiction of my usual practice, because I considered this a minor part of the column. If I were writing the column today, I would use other sources to support the general conclusion of low gun-ownership rates, but I would certainly not use any of Bellesiles’ work, nor speak with the same certainty on that particular facet. I chose to leave the column as is and insert this note so as to explain one of my errors, rather than make it disappear, as errors are often instructive. The bulk of the column has nothing to do with Bellesiles, and, I believe, remains correct.
Showing posts with label law. Show all posts
Showing posts with label law. Show all posts
March 29, 2008
March 28, 2008
Interracial Marriage And Gay Marriage
Stupid Question ™
July 3, 2003
By John Ruch
© 2003
Q: With the recent U.S. and Canadian pro-gay legal decisions, I’ve heard comparisons to when the U.S. legalized interracial marriage. When did that happen and was the fight similar?
—Anonymous
A: Only 36 years. That’s how long straight Americans have had the complete right, not infringed anywhere, to marry a partner of a different ethnicity.
The fortuitously named 1967 Loving v. Virginia decision (well described in the fascinating Supreme Court transcript book “May It Please the Court…”) started with the 1958 marriage of Richard Loving, a white man, to Mildred Jeter, a mixed black and Native American woman.
At the time, 16 states were still enforcing anti-miscegenation (“race-mixing”) laws, and nine out of 10 Americans supported them.
Virginia was one of those states. It had banned interracial marriage (specifically, whites marrying any “lower” race) since the 1600s, and by the 1920s required a racial purity certificate for a marriage license.
The Lovings ducked the problem by getting married out of state. But in 1959, the sheriff back home swooped in with a felony charge of race-mixing.
The Lovings pleaded guilty, and the judge ordered them to leave the state for 25 years—an out of sight, out of mind mentality that is certainly similar to today’s homophobia.
After nine years of secretly living in Virginia, the Lovings went to court with the American Civil Liberties Union and won a unanimous Supreme Court decision.
Loving was based on equal protection and due process, not on the privacy arguments behind the recent sodomy law wipe-out (Lawrence v. Texas), so the analogy is not direct. And Canada’s recent moves to legalize gay marriage are based largely on international human rights treaties that the U.S. holds in utter contempt.
However, Loving will undoubtedly be key in forthcoming state supreme court rulings. Justice Antonin Scalia, in his Lawrence dissent, feared as much: He praised Loving, but said it shouldn’t be applied to anti-gay(-sex) laws that he claims have a “rational basis” in morality.
Scalia also wrote that the Lawrence ruling threatens civil order by acknowledging the “homosexual agenda.” Fitting, because most of the anti-miscegenation rationales implied a sort of “Negro agenda” and sounded much like modern homophobia.
Virginia argued against the Lovings with the same obtuse brand of Judeo-Christianity—God created separate races in separate places, and they shouldn’t mix. (To paraphrase a homophobic jingle, it was Master and Slave, not Adam and Eve.)
It similarly argued that interracial marriages were doomed to failure and engaged in only by psychological deviants. Children produced by the union would be scarred for life. And most Americans hated it.
Like gay marriage and the right to sexual privacy, interracial marriage was feared as a floodgate that, if opened, would drown us in incest, polygamy, underage marriage, prostitution and even drug legalization. Today, all remain illegal, and a member of the Supreme Court itself (Clarence Thomas) lives, apparently happily and productively, in an interracial marriage.
However, Loving is a two-edged sword. It declared marriage a basic civil right in part because it is “fundamental to our very existence and survival”—implying that its value lies in procreation.
Speaking after his court victory, Richard Loving reached a simpler conclusion: “Now I can put my arm around my wife in Virginia.”
July 3, 2003
By John Ruch
© 2003
Q: With the recent U.S. and Canadian pro-gay legal decisions, I’ve heard comparisons to when the U.S. legalized interracial marriage. When did that happen and was the fight similar?
—Anonymous
A: Only 36 years. That’s how long straight Americans have had the complete right, not infringed anywhere, to marry a partner of a different ethnicity.
The fortuitously named 1967 Loving v. Virginia decision (well described in the fascinating Supreme Court transcript book “May It Please the Court…”) started with the 1958 marriage of Richard Loving, a white man, to Mildred Jeter, a mixed black and Native American woman.
At the time, 16 states were still enforcing anti-miscegenation (“race-mixing”) laws, and nine out of 10 Americans supported them.
Virginia was one of those states. It had banned interracial marriage (specifically, whites marrying any “lower” race) since the 1600s, and by the 1920s required a racial purity certificate for a marriage license.
The Lovings ducked the problem by getting married out of state. But in 1959, the sheriff back home swooped in with a felony charge of race-mixing.
The Lovings pleaded guilty, and the judge ordered them to leave the state for 25 years—an out of sight, out of mind mentality that is certainly similar to today’s homophobia.
After nine years of secretly living in Virginia, the Lovings went to court with the American Civil Liberties Union and won a unanimous Supreme Court decision.
Loving was based on equal protection and due process, not on the privacy arguments behind the recent sodomy law wipe-out (Lawrence v. Texas), so the analogy is not direct. And Canada’s recent moves to legalize gay marriage are based largely on international human rights treaties that the U.S. holds in utter contempt.
However, Loving will undoubtedly be key in forthcoming state supreme court rulings. Justice Antonin Scalia, in his Lawrence dissent, feared as much: He praised Loving, but said it shouldn’t be applied to anti-gay(-sex) laws that he claims have a “rational basis” in morality.
Scalia also wrote that the Lawrence ruling threatens civil order by acknowledging the “homosexual agenda.” Fitting, because most of the anti-miscegenation rationales implied a sort of “Negro agenda” and sounded much like modern homophobia.
Virginia argued against the Lovings with the same obtuse brand of Judeo-Christianity—God created separate races in separate places, and they shouldn’t mix. (To paraphrase a homophobic jingle, it was Master and Slave, not Adam and Eve.)
It similarly argued that interracial marriages were doomed to failure and engaged in only by psychological deviants. Children produced by the union would be scarred for life. And most Americans hated it.
Like gay marriage and the right to sexual privacy, interracial marriage was feared as a floodgate that, if opened, would drown us in incest, polygamy, underage marriage, prostitution and even drug legalization. Today, all remain illegal, and a member of the Supreme Court itself (Clarence Thomas) lives, apparently happily and productively, in an interracial marriage.
However, Loving is a two-edged sword. It declared marriage a basic civil right in part because it is “fundamental to our very existence and survival”—implying that its value lies in procreation.
Speaking after his court victory, Richard Loving reached a simpler conclusion: “Now I can put my arm around my wife in Virginia.”
Travel Without Citizenship
Stupid Question ™
March 6, 2003
By John Ruch
© 2003
Q: If I renounced US citizenship to freely travel the world, would other countries allow me entry?
—Bill Miller
A: The US bans on travel to Cuba, Libya and Iraq may be ridiculous violations of all international precepts of human rights. But the fact is, you can travel a lot more freely with a US passport than as a “stateless” person.
Not only would virtually all countries bar you from entering, they would probably imprison you indefinitely because there would be nowhere to deport you to. The US has hundreds of such permanent prisoners who became unwillingly stateless.
This would be an immediate problem because the standard citizenship renunciation procedure requires the deed to be done before a US diplomat in a foreign country. (You can also renounce within the US during a “time of war”—but despite what President Bush asserts, the State Department doesn’t consider this to be such a time.)
On the other hand, unless you were dead serious, you probably couldn’t renounce your citizenship anyway. In a 1998 court case, a renunciation was thrown out because the citizen sought to retain one benefit of US citizenship: “namely to travel freely throughout the world and when he wants to, return and reside in the United States.”
Involuntary statelessness is a serious global problem. Millions have lost all citizenship rights when their government collapsed or stripped them of rights, usually for ethnic or religious reasons. Victims include ethnic Albanians in Kosovo, the Roma (or Gypsies), the so-called Bedoons in Kuwait, and women around the world who lose their nationality when they divorce.
Under United Nations conventions, most countries will provide such refugees with a “Stateless Person” travel document—an ersatz passport giving them some identity and the ability to travel in search of a permanent home.
As a willingly stateless person, it is unlikely you would qualify for this document.
Another solution is to invent your own passport, the trick pulled by Garry Davis, a US World War II vet.
On May 18, 1948, Davis renounced his citizenship in Paris to become a “World Citizen.” He did some traveling due to his instant celebrity, but also ran into extreme difficulties.
France finally got so sick of him it gave him “Stateless Person” documents just to get rid of him. He “emigrated” to the US and still resides here, apparently as an “alien,” after a court battle.
Davis founded the “World Service Authority” (WSA) and in 1954 issued the first WSA passport to himself. WSA passports are very official-looking and are now available to anyone willing to buy one.
Davis claims that he and others have used the passports to enter more than 150 countries—including the US—though this reflects apathetic customs officials and good luck more than official recognition. Davis has been arrested more than a dozen times for his border crossings.
However, six countries have officially recognized, in writing, the WSA passports as valid: Burkina Faso, Ecuador, Mauritania, Tanzania, Togo and Zambia.
Not exactly a dream trip, but it’s the only travel package available for the stateless tourist.
March 6, 2003
By John Ruch
© 2003
Q: If I renounced US citizenship to freely travel the world, would other countries allow me entry?
—Bill Miller
A: The US bans on travel to Cuba, Libya and Iraq may be ridiculous violations of all international precepts of human rights. But the fact is, you can travel a lot more freely with a US passport than as a “stateless” person.
Not only would virtually all countries bar you from entering, they would probably imprison you indefinitely because there would be nowhere to deport you to. The US has hundreds of such permanent prisoners who became unwillingly stateless.
This would be an immediate problem because the standard citizenship renunciation procedure requires the deed to be done before a US diplomat in a foreign country. (You can also renounce within the US during a “time of war”—but despite what President Bush asserts, the State Department doesn’t consider this to be such a time.)
On the other hand, unless you were dead serious, you probably couldn’t renounce your citizenship anyway. In a 1998 court case, a renunciation was thrown out because the citizen sought to retain one benefit of US citizenship: “namely to travel freely throughout the world and when he wants to, return and reside in the United States.”
Involuntary statelessness is a serious global problem. Millions have lost all citizenship rights when their government collapsed or stripped them of rights, usually for ethnic or religious reasons. Victims include ethnic Albanians in Kosovo, the Roma (or Gypsies), the so-called Bedoons in Kuwait, and women around the world who lose their nationality when they divorce.
Under United Nations conventions, most countries will provide such refugees with a “Stateless Person” travel document—an ersatz passport giving them some identity and the ability to travel in search of a permanent home.
As a willingly stateless person, it is unlikely you would qualify for this document.
Another solution is to invent your own passport, the trick pulled by Garry Davis, a US World War II vet.
On May 18, 1948, Davis renounced his citizenship in Paris to become a “World Citizen.” He did some traveling due to his instant celebrity, but also ran into extreme difficulties.
France finally got so sick of him it gave him “Stateless Person” documents just to get rid of him. He “emigrated” to the US and still resides here, apparently as an “alien,” after a court battle.
Davis founded the “World Service Authority” (WSA) and in 1954 issued the first WSA passport to himself. WSA passports are very official-looking and are now available to anyone willing to buy one.
Davis claims that he and others have used the passports to enter more than 150 countries—including the US—though this reflects apathetic customs officials and good luck more than official recognition. Davis has been arrested more than a dozen times for his border crossings.
However, six countries have officially recognized, in writing, the WSA passports as valid: Burkina Faso, Ecuador, Mauritania, Tanzania, Togo and Zambia.
Not exactly a dream trip, but it’s the only travel package available for the stateless tourist.
Antarctica Ownership
Stupid Question ™
May 9, 2002
By John Ruch
© 2002
Q: Who owns Antarctica?
—Jake
A: The answer, as any Internet search engine will barf out at you, is that no one owns Antarctica.
But this doesn’t mean very much, since no one owns any of the other continents, either. Instead, various governments have sovereignty over various parts of the continents, and may grant private ownership of land to their citizens.
The same basic situation exists in Antarctica, with two major exceptions: Not everyone agrees claims of sovereignty there have any validity, and those who do think they have sovereignty have agreed not to do anything about it.
The first two waves of exploration, in 1820-1850 and 1890-1930, came from about 10 countries. Most were private expeditions either hoping to find some valuable resources or simply going for the adventure and glory. (Private expeditions continue today, though they’re mostly limited to insane South Pole skydiving flights.)
But as early as the 1920s, governments started claiming territory based on claims of discovery, exploration and/or geographical proximity. By the 1950s, huge tracts had been claimed by Argentina, Australia, Chile, France, New Zealand, Norway and the UK. Australia alone claimed nearly half the continent.
The potential for conflict was obvious, especially since the UK and Argentina had competing claims that tied into their dispute over the Falkland Islands.
The US and Soviet Union did not recognize any of these claims, and did not make any of their own (though reserving the right to do so). They recognized the threat of Antarctica becoming a nuclear missile haven and possibly sparking a literal Cold War.
In 1957, an “International Geophysical Year” was declared in which 12 nations would work jointly on science projects. The US seized the opportunity and proposed the nations join an Antarctic Treaty to ensure peaceful exploration of the continent.
It worked. In 1959, the signatories (including all nations with territorial claims) agreed to ban military activity and nuclear weapons/waste, and preserve Antarctica as a peaceful, collegial scientific environment. (A total of 44 countries have now signed on.)
The treaty allowed those with existing territorial claims to keep making them (without judging the validity of such claims), but barred them from developing or expanding such claims. It also barred any new territorial claims. In addition, it mandated open inspections and free travel in any area.
Practically, though not legally, it killed territorial claims, which traditionally require colonization, improvement and defense to be established. (Most of the territorial countries do have essentially powerless Antarctic governors and make weak support efforts such as issuing postage stamps of their “territory.”)
Once a powder keg, Antarctica is now a model of international cooperation. One US base actually sits within territory claimed by New Zealand. You can enter without a passport.
There has never been any major violation of the treaty. However, until recently Argentina had been aggressively asserting colonial claims. It actually sent a pregnant woman to give birth there in 1978, successfully making an Argentine citizen the first person born in Antarctica.
May 9, 2002
By John Ruch
© 2002
Q: Who owns Antarctica?
—Jake
A: The answer, as any Internet search engine will barf out at you, is that no one owns Antarctica.
But this doesn’t mean very much, since no one owns any of the other continents, either. Instead, various governments have sovereignty over various parts of the continents, and may grant private ownership of land to their citizens.
The same basic situation exists in Antarctica, with two major exceptions: Not everyone agrees claims of sovereignty there have any validity, and those who do think they have sovereignty have agreed not to do anything about it.
The first two waves of exploration, in 1820-1850 and 1890-1930, came from about 10 countries. Most were private expeditions either hoping to find some valuable resources or simply going for the adventure and glory. (Private expeditions continue today, though they’re mostly limited to insane South Pole skydiving flights.)
But as early as the 1920s, governments started claiming territory based on claims of discovery, exploration and/or geographical proximity. By the 1950s, huge tracts had been claimed by Argentina, Australia, Chile, France, New Zealand, Norway and the UK. Australia alone claimed nearly half the continent.
The potential for conflict was obvious, especially since the UK and Argentina had competing claims that tied into their dispute over the Falkland Islands.
The US and Soviet Union did not recognize any of these claims, and did not make any of their own (though reserving the right to do so). They recognized the threat of Antarctica becoming a nuclear missile haven and possibly sparking a literal Cold War.
In 1957, an “International Geophysical Year” was declared in which 12 nations would work jointly on science projects. The US seized the opportunity and proposed the nations join an Antarctic Treaty to ensure peaceful exploration of the continent.
It worked. In 1959, the signatories (including all nations with territorial claims) agreed to ban military activity and nuclear weapons/waste, and preserve Antarctica as a peaceful, collegial scientific environment. (A total of 44 countries have now signed on.)
The treaty allowed those with existing territorial claims to keep making them (without judging the validity of such claims), but barred them from developing or expanding such claims. It also barred any new territorial claims. In addition, it mandated open inspections and free travel in any area.
Practically, though not legally, it killed territorial claims, which traditionally require colonization, improvement and defense to be established. (Most of the territorial countries do have essentially powerless Antarctic governors and make weak support efforts such as issuing postage stamps of their “territory.”)
Once a powder keg, Antarctica is now a model of international cooperation. One US base actually sits within territory claimed by New Zealand. You can enter without a passport.
There has never been any major violation of the treaty. However, until recently Argentina had been aggressively asserting colonial claims. It actually sent a pregnant woman to give birth there in 1978, successfully making an Argentine citizen the first person born in Antarctica.
Registering Hands As Deadly Weapons
Stupid Question ™
April 4, 2002
By John Ruch
© 2002
Q: Has anyone ever actually had to register their hands as deadly weapons?
—Bob Sindledecker
A: No. The only thing close is an outfit called the International Lethal Defense Combat Organization, which for a $25 membership fee will send you a “document which testifies that your hands are registered” with them.
It’s unknown who started the hand-registration myth, but it’s still current among sportswriters and martial artists.
No only is there no hand registration; there’s no law that specifically classifies any body part as a deadly weapon, or that places professional or trained fighters under any special restrictions. However, fists—anybody’s fists—are sometimes classed as deadly weapons, and the whole concept is a legal gray area.
The distinction is important because use of a deadly weapon upgrades an assault or battery to a more serious crime.
Recently, the fists-as-weapons concept has begun appearing in criminal cases involving boxers. This concept was absent from such cases as late as the 1950s, when Sonny Liston was getting into street brawls. But when former World Boxing Association heavyweight champ Michael Dokes was charged with beating his wife in 1998, his attorney was careful to note that he didn’t used closed fists, fearing they’d be classified as deadly weapons.
In 1999, North American Boxing Federation super-middleweight champ Scott Pemberton was charged with “assault and battery with a dangerous weapon” for punching a man, but this was later reduced to simple assault and battery.
Legal definitions of “deadly weapons” vary state to state, but are generally very broad and can include just about anything, depending on use. Automobiles, heavy boots and toilet-plunger handles have all been deemed deadly weapons. (Note that you don’t have to register toilet plungers.)
Ohio’s definition is “any instrument, device, or thing capable of inflicting death, and designed or specifically adapted for use as a weapon, or possessed, carried, or used as a weapon.”
This would seem to cover the human hand. Indeed, in a landmark 1960 case, it was ruled that hands could be considered deadly weapons. But in fact, legal interpretation is unclear.
In recent years Ohio appellate courts have issued contradictory rulings on the subject. A 1999 ruling said “there is no question” that fists can be deadly weapons; a 2000 ruling affirmed a lower court’s jury instruction that fists can’t be considered deadly weapons. And a 1996 ruling said that “while human fists may not be deadly weapons per se,” it was reasonable to consider them as such in a specific beating case (incidentally, one involving a former boxer).
For comparison, in 1992 a Florida court shot down fists-as-weapons, saying it was an unconstitutionally overbroad reading that would make every assault/battery case a deadly-weapon one. However, it specifically left open the question of whether a trained fighter’s hands and feet could be deemed weapons.
In any case, few (if any) people convicted of a deadly weapon assault with their hands are trained fighters.
April 4, 2002
By John Ruch
© 2002
Q: Has anyone ever actually had to register their hands as deadly weapons?
—Bob Sindledecker
A: No. The only thing close is an outfit called the International Lethal Defense Combat Organization, which for a $25 membership fee will send you a “document which testifies that your hands are registered” with them.
It’s unknown who started the hand-registration myth, but it’s still current among sportswriters and martial artists.
No only is there no hand registration; there’s no law that specifically classifies any body part as a deadly weapon, or that places professional or trained fighters under any special restrictions. However, fists—anybody’s fists—are sometimes classed as deadly weapons, and the whole concept is a legal gray area.
The distinction is important because use of a deadly weapon upgrades an assault or battery to a more serious crime.
Recently, the fists-as-weapons concept has begun appearing in criminal cases involving boxers. This concept was absent from such cases as late as the 1950s, when Sonny Liston was getting into street brawls. But when former World Boxing Association heavyweight champ Michael Dokes was charged with beating his wife in 1998, his attorney was careful to note that he didn’t used closed fists, fearing they’d be classified as deadly weapons.
In 1999, North American Boxing Federation super-middleweight champ Scott Pemberton was charged with “assault and battery with a dangerous weapon” for punching a man, but this was later reduced to simple assault and battery.
Legal definitions of “deadly weapons” vary state to state, but are generally very broad and can include just about anything, depending on use. Automobiles, heavy boots and toilet-plunger handles have all been deemed deadly weapons. (Note that you don’t have to register toilet plungers.)
Ohio’s definition is “any instrument, device, or thing capable of inflicting death, and designed or specifically adapted for use as a weapon, or possessed, carried, or used as a weapon.”
This would seem to cover the human hand. Indeed, in a landmark 1960 case, it was ruled that hands could be considered deadly weapons. But in fact, legal interpretation is unclear.
In recent years Ohio appellate courts have issued contradictory rulings on the subject. A 1999 ruling said “there is no question” that fists can be deadly weapons; a 2000 ruling affirmed a lower court’s jury instruction that fists can’t be considered deadly weapons. And a 1996 ruling said that “while human fists may not be deadly weapons per se,” it was reasonable to consider them as such in a specific beating case (incidentally, one involving a former boxer).
For comparison, in 1992 a Florida court shot down fists-as-weapons, saying it was an unconstitutionally overbroad reading that would make every assault/battery case a deadly-weapon one. However, it specifically left open the question of whether a trained fighter’s hands and feet could be deemed weapons.
In any case, few (if any) people convicted of a deadly weapon assault with their hands are trained fighters.