Monthly Archives: June 2017

Yes, says the New Jersey (!) Supreme Court in yesterdays unanimous State v. Montalvo opinion; here are the facts, from the courts syllabus:

This appeal concerns whether an individual may lawfully possess and hold a weapon for self-defense in his home while answering the front door.

Defendant Crisoforo Montalvo and his wife lived directly above Arturs Daleckis and his wife. On the night of March 24, 2012, Daleckis grew agitated by noise emanating from Montalvos unit; he stood on his bed and knocked on the ceiling three or four times. Montalvo then proceeded downstairs and knocked on Daleckiss door. Montalvo picked up a small table belonging to Daleckis and threw it off the front porch, breaking it.

After Montalvo returned to his unit, Daleckis knocked on the door. Montalvo and his wife testified that they heard knocking, kicking, and slamming on the door. Montalvo testified that he became scared for himself, his wife, and their unborn child. As a precautionary measure, Montalvo retrieved a machete from a closet as he moved to answer the door. Daleckis testified that Montalvo pointed the machete at him. Montalvo testified that he kept the machete in his hand, behind his leg, and below his waist while speaking with Daleckis.

Montalvo was acquitted of possession of a weapon for an unlawful purpose (Count One, in the discussion below) but convicted of unlawful possession of a weapon (Count Two). At trial, the judge included a self-defense instruction as to the unlawful-purpose charge but didnt give it as to the unlawful-possession charge.

During deliberations, the jury sent the trial judge a note asking, Second charge, unlawful possession of a weapon, is self[-]defense considered a lawful use?.' The judge responded thus:

I remind you that it is necessary for the State to prove that it, meaning the object[,] was possessed under such circumstances that a reasonable person would recognize that it was likely to be used as a weapon. In other words, under circumstances where it posed a likely threat of harm to others and/or a likely threat of damage to property, you may consider factors such as the surrounding circumstances as well as the size, shape, and condition of the object; the nature of its concealment; the time, place and actions of the defendant; when it was found in his possession to determine whether or not the object was manifestly appropriate for its lawful uses.

This statute is 2C:39-5(d). Section 5(d) prohibits the possession of implements as weapons even if possessed for precautionary purposes, except in situations of immediate and imminent danger.

Although self[-]defense involves a lawful use of a weapon, it does not justify the unlawful possession of the weapon under Section 5(d) except when a person uses a weapon after arming himself or herself spontaneously to repel an immediate danger.

Obviously, there may be circumstances in which a weapon is seized in response to an immediate danger, but ensuing circumstances render its use unnecessary. Under such conditions, the individual may take immediate possession of the weapon out of necessity rather than self[-]defense. However, it would appear that the availability of necessity as a justification for the immediate possession of a weapon, as with self[-]defense, is limited only to cases of spontaneous and compelling danger. Please resume your deliberations.

But the New Jersey Supreme Court held that the judge should have instructed the jury as to self-defense:

[The unlawful-possession statute] prohibits the possession of any weapon, other than certain firearms, when an actor has not yet formed an intent to use [the] object as a weapon [but] possesses it under circumstances in which it is likely to be so used. [This] class of possessory weapons offenses is codified by N.J.S.A. 2C:39-5(d), which states that [a]ny person who knowingly has in his possession any other weapon under circumstances not manifestly appropriate for such lawful uses as it may have is guilty of a crime of the fourth degree. The purpose of Section 5(d) is to protect[] citizens from the threat of harm while permitting the use of objects such as knives in a manner consistent with a free and civilized society. The statute applies to circumstances resulting in a threat of harm to persons or property.

A machete constitutes a weapon within this statutory scheme. See N.J.S.A. 2C:39-1(r) (defining weapon as anything readily capable of lethal use or inflicting serious bodily injury); State v. Irizarry (N.J. App. Div. 1994) (observing N.J.S.A. 2C:39-5(d) concerns weapons such as knives and machetes[] that have both lawful and unlawful uses).

Self-defense is a potential defense to a possessory weapons offense. The Second Amendment guarantee[s] the individual right to possess and carry weapons in case of confrontation, D.C. v. Heller (2008) . It extends to all instruments that constitute bearable arms.

In Heller, the Supreme Court recognized that the inherent right of self-defense has been central to the Second Amendment right. New Jerseys statutes protect the right of self-defense. Generally, the use of force against another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by another.

The use of deadly force for self-defense is justifiable only when the actor reasonably believes that such force is necessary to protect himself against death or serious bodily injury, unless the actor provoked the use of force or knows he can safely retreat. Thus, the defensive conduct must be based on a reasonable belief of potential harm, and the defensive force must be proportional to the offensive force.

Montalvo legally possessed a machete in his home. It is of no matter whether his possession was for roofing or for self-defense because either would qualify as a lawful purpose. [T]he Second Amendment protects the right of individuals to possess weapons, including machetes, in the home for self-defense purposes. Thus, Montalvo had a constitutional right to possess the machete in his home for his own defense and that of his pregnant wife. Because the courts instructions did not convey this principle, the instructions were erroneous.

The State asserts that answering an angry knock at the door with a weapon in hand constitutes possession under circumstances not manifestly appropriate for such lawful uses as it may have. That position is untenable.

The right to possess a weapon in ones own home for self-defense would be of little effect if one were required to keep the weapon out-of-hand, picking it up only spontaneously. Such a rule would negate the purpose of possessing a weapon for defense of the home.

The court sent the case back for a possible retrial, so the jury could decide whether Montalvo indeed just used the machete for defensive purposes. (The state argued, for instance, that he also took it outside and chopped at the porch that he shared with Daleckis; if those were the facts, the court said, that would be an unlawful purpose, but if the facts were as Montalvo claimed they were, his conduct would be lawful self-defense.)

Finally, the court tried to avoid this problem in the future, by directing its Committee on Model Criminal Jury Charges to review and revise the model jury instruction for the unlawful possession offense:

We suggest the following language for the Committees consideration in refashioning the charge: Determining whether the State has proven beyond a reasonable doubt that defendant possessed a weapon in his home under circumstances not manifestly appropriate for a lawful use requires special considerations. Persons may lawfully possess weapons in their homes, even though possession of those same weapons may not be manifestly appropriate outside the home. Using a twelve-inch steak knife in a kitchen to prepare dinner is lawful and possessing it as means of defense in case of a home invasion is lawful as well; carrying the same knife on the street on the way to pick up groceries may not be manifestly appropriate.

Individuals may possess in their homes objects that serve multiple lawful purposes, including the purpose of anticipatory self-defense. In this case, Montalvo possessed at home a machete he used in his roofing job. He was lawfully entitled to possess that machete as a weapon in his home as a means of defending himself and his family from attack as well. The right to possess that weapon, however, does not mean that it can be used without justification.

An individual who responds to the door of his home with a concealed weapon that threatens no one acts within the bounds of the law. He need give no justification for what he is lawfully allowed to do.

On the other hand, an individual may not threaten another with a weapon, even within the confines of his home, without lawful justification. Thus, Montalvo could not answer the door threatening the use of a machete merely for the purpose of inciting fear in another. He could threaten the use of the machete, however, if he had a sincere or reasonable belief that the show of such force was necessary to protect himself or his wife from an imminent attack.

The burden always remains on the State to prove that defendant did not lawfully possess the weapon in his home or, if the weapon was threatened against another, that possession of the weapon was not manifestly appropriate for the purpose of self-defense.

Sounds right to me, at least as to home possession. (What is the proper scope of the Second Amendment outside the home is a hotly contested matter, on which courts have split, and which the Supreme Court is currently being asked to consider, in the Peruta petition.)

Read the rest here:
Second Amendment right to meet people at the door with a machete ... - Washington Post

Eugene Volokh is tackling a less common Second Amendment argument this week. It stems from a recent decision made by the New Jersey state supreme court involving a resident who was convicted of Unlawful Possession of a Weapon. The crime in question was the fact that there was a dispute going on with a neighbor in his apartment complex and when he came pounding on the door, the defendant answered the door with a machete in his hand. He may or may not have pointed it at the unruly neighbor (stories conflict on that point) but he definitely didnt injure or even attack the person. The state supreme court overturned the conviction and sent the case back for a new trial with different instructions from the judge because the defendants rights had been violated.

This leads Volokh to answer another question which he apparently gets fairly often from people who dont follow the subject closely. Are swords, knifes, machetes and other blade weapons covered by the Second Amendment? We spend so much of our time talking about guns that this area of hardware doesnt come up very often. His conclusions: (The Volokh Conspiracy, Washington Post)

This should be obvious, I think: The Second Amendment protects arms, and the D.C. v. Heller opinion discusses bows and knives as examples of such arms; opinions in the 1800s and 1900s dealing with state constitutional rights to bear arms also mention bladed weapons; and post-Heller opinions, such as from courts in Connecticut, Michigan, and Wisconsin agree. But some have disagreed the Massachusetts government in the Caetano stun gun case before the Massachusetts high court, for instance, argued that Heller was limited to firearms. The New Jersey decision should be a helpful precedent, then, for other non-gun cases (though of course it doesnt dispose of the question of exactly what weapons are protected, and where they can be possessed).

The Constitution Society has a handy document you might want to bookmark which covers this, as well as many other questions on related topics. In it, they go into a bit more detail about precisely what the Founders intended and what classes of weapons should be covered. (Emphasis added)

The U.S. Constitution does not adequately define arms. When it was adopted, arms included muzzle-loaded muskets and pistols, swords, knives, bows with arrows, and spears. However, a common- law definition would be light infantry weapons which can be carried and used, together with ammunition, by a single militiaman, functionally equivalent to those commonly used by infantrymen in land warfare. That certainly includes modern rifles and handguns, full-auto machine guns and shotguns, grenade and grenade launchers, flares, smoke, tear gas, incendiary rounds, and anti-tank weapons, but not heavy artillery, rockets, or bombs, or lethal chemical, biological or nuclear weapons. Somewhere in between we need to draw the line.

Personally, they go a bit further over the gray line that must be drawn between personal weaponry and group combat weapons for my taste (grenade launchers and anti-tank missiles seem a bit heavy handed) but thats mostly about right I think. Keep in mind that not everyone could afford a firearm at the time of the nations founding and many may have been making do with a bow, a knife or even a farm implement. Im not sure how common swords were for the layman at the time (good ones were also historically quite expensive) but that would have to fall into the same class.

Its also commonly noted in literature of the time that people signing up for militia duty would need to be provided with a rifle if they couldnt afford their own. This, by the way, is where we get the term well regulated because regulated in that context meant properly supplied. But in any event, Volokh has some good information in both of the articles linked above which I thought you might find useful. And since weve recently seen them used by terrorists, might the Second Amendment also cover hammers if you were holding one when you answered the door? Since you can clearly kill someone with a well placed hammer blow Id have to say yes. Same for baseball bats.

Visit link:
Does the Second Amendment cover edged weapons? - Hot Air

The New Jersey machete decision is important because it rejects a spontaneity requirement for arming yourself at home (the states theory that you could pick up a weapon against an imminent attack, but you cant come to the door with the weapon just in case). But its also important because it reaffirms that the Second Amendment protects not just guns but other weapons as well.

This should be obvious, I think: The Second Amendment protects arms, and the D.C. v. Heller opinion discusses bows and knives as examples of such arms; opinions in the 1800s and 1900s dealing with state constitutional rights to bear arms also mention bladed weapons; and post-Heller opinions, such as from courts in Connecticut, Michigan, and Wisconsin agree. But some have disagreed the Massachusetts government in the Caetano stun gun case before the Massachusetts high court, for instance, argued that Heller was limited to firearms. The New Jersey decision should be a helpful precedent, then, for other non-gun cases (though of course it doesnt dispose of the question of exactly what weapons are protected, and where they can be possessed).

Read the original:
The Second Amendment protects some bladed weapons, and not just firearms - Washington Post