The US Court of Appeals in
Gomez held that self-defense, and use of a gun to effect that self-defense, is a fundamental right:
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:
[M]ight 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 as we 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, because 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)
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