cboldt: Without doing any survey of the law, my reaction is that this shifting parallels the standards that pertain in criminal trials. This is roughly the re-establishment of presumption of innocence.

Thanks. Close to what I was wondering.

What raised the question for me was the court’s use of affirmative defense to describe rebuttal of an element of the crime.

Self defense rebuts the mens rea of the crime. The defendant’s burden is that of going forward, presenting evidence which a reasonable jury could conclude rebuts the element. The burden of proof does not shift, and standard of proof remains. Prosecution must overcome defendant’s evidence beyond reasonable doubt. That was the case here.

An affirmative defense usually requires defendant to prove its elements by preponderance, and can necessitate admission to having committed the offense.

I’m accustomed to thinking of self defense as a rebuttal, so I found the court’s terminology confusing.

Similarly, G. Gordon Liddy (a convicted felon) is well-noted for the fact of his family’s firearms possessions being owned by his wife

I had thought Carter pardonned him but Wikipedia says he just commuted the sentence. How bizarre.

From the MI decision, p. 18 (discussed in more detail pp 15-16):

We also conclude that self-defense was available under the facts of this case. Once a defendant satisfies the initial burden of producing some evidence from which a jury could conclude that the elements necessary to establish a prima facie defense of self-defense exist, the prosecution bears the burden of disproving the affirmative defense of self-defense beyond a reasonable doubt.

Shag from Brookline: Doesn’t everyone have a right of self defense just about any place, at any time, e.g., government facilities, including the Supreme Court? In a church, mosque or synagogue? On public transit?

Of course! And if somebody snuck a gun past the Supreme Court’s security guards and started opening fire at random, you’d be entitled to a self-defense instruction if you used a gun (say one of the guards was shot and dropped his gun and you picked it up) even though you’re not lawfully entitled to possess a weapon in the Supreme Court.

Shag from Brookline: Doesn’t everyone have a right of self defense just about any place, at any time, e.g., government facilities, including the Supreme Court? In a church, mosque or synagogue? On public transit? Someone visiting you at your home who knows you have guns for self defense and fears you might harm him/her if unarmed? Does an absolute right to self defense then call for an absolute right to keep and bear arms for that purpose, whether open or concealed?

Don’t be ridiculous. That’s crazy talk.

As for being excused from operation of law, I think the “illegal to discharge” laws that are in force in most, if not all cities, include language that permits discharge for lawful self-defense.

Even when they don’t, the common law affirmative self-defense applies.

Shag from Brookline: Doesn’t everyone have a right of self defense just about any place, at any time, e.g., government facilities, including the Supreme Court? In a church, mosque or synagogue?

Surely you do. But to exercise your right to self-defense (in the legal sense, not the human rights sense), you need to be in imminent danger. You can’t just be generally fearful that something might happen to you if you go to church.

On a deeper level, you can of course argue that your human right of self-defense is meaningless if you’re not allowed to carry a gun anywhere and everywhere. But the law hasn’t reached the point of recognizing the right of self-defense to that extent. Justice Scalia basically blew it off altogether in the Heller dicta.

“As a moral matter, individual force parity is called for — or better, superior force to the innocent or victim.”

As to whether one is the “innocent or victim,” when is that determination made? Perhaps by the time a court gets involved, the facts may differ on whether the self defense claimer is the “innocent or victim” or the perp.

cboldt also said:

“As a matter of law, the government can assign force superiority however it feels, by person, time, and place.”

May the government “assign force superiority” prior to the alleged act of self defense? If not, when? A cite to the “law” would be appreciated.

Soronel Haetir says:

I know courts have repeatedly made such rulings, but have they ever actually encountered the case that does in fact pass the test?

See State v. Blache, 480 So. 2d 304 (La. 1985)

Defendant was a felon who used brother’s gun to defend himself from attackers. The court reversed the conviction stating that “when a felon is in imminent peril of great bodily harm, or reasonably believes himself or others to be in such danger, he may take possession of a weapon for a period no longer than is necessary or apparently necessary to use it in self defense or in defense of others.”

I also found it interesting that in the original case, it seems to mislead you to think that the defendant had grabbed Reeves’ gun; whereas in the appeal, they make it clear that Reeves had reached for the gun and that the defendant had wrestled it away. I wonder if the defense would have stuck if the defendant had preemptively taken the gun from Reeves and the shots had still been fired.

In this criminal case, we hold that the traditional common law affirmative defense of self-defense may be interposed to a charge of being a felon in possession of a firearm, MCL 750.224f.

Gosh. Doesn’t that sound suspiciously like a long-recognized individual right?