Today the jury will start deliberating in Scranton, Pennsylvania in the trial of Brandon Piekarsky and Derrick Donchak who are charged with a hate crime and a civil rights violation for the murder of Luis Ramirez. It is alleged that Piekarsky, Donchak, and a group of their high school buddies killed Ramirez because they were upset with the increase in the Hispanic population in their hometown of Shenandoah.

According to the Associated Press article the teenagers were tried and found not guilty on serious state charges and are now being charged in Federal Court. A half dozen inebriated members of their high school football team, according to the prosecutor, acted as a team in attacking the twenty-five year old Hispanic man after they attended a block party.

At one point during the fight Ramirez walked away. Then one of the teenagers yelled racial slurs at him and he charged towards them.

Certainly the death of Ramirez is a tragedy, but a number of a number of basic American traditions are brought into question by the trial. While no strict double jeopardy question arises since the Federal charges are different from the state charges for which the men were found not guilty. But do we really want to give the government two bites of the apple. They already put the defendants through one serious trial and now they are facing life in prison in a second trial for the same act.

Ramirez left the fight and then came back to renew it. I do not know about Pennsylvania law but under California law and the law of many states Piekarsky and Donchak had no duty to retreat. They would have had a right to defend themselves. As the Supreme Court recently pointed out in McDonald the right to defend oneself, even with a gun and there were no guns involved in this case, is fundamental to the American way of life.

A third issue is that the four football players are being treated as a team. Two of them have plead and the other two are on trial but the prosecutor calls them a team. Traditionally we insist upon individual responsibility. We do not blame everyone walking home in the group because one of the group, Brian Scully yelled racial slurs at Ramirez. Nor do we hold it against the entire group that Collin Walsh knocked Ramirez out or that Piekarsky kicked him in the head while he was unconscious.

Regardless of what you think about these American traditions the law is not the best way to change them. Regardless of what the jury does, the right of self defense in strongly ingrained in our society. Likewise nothing that happens in Scranton is going to change American individuality or view about subjecting defendants to multiple trials for the same behavior. These values are taught to us as children and trials are not going to change them.

On the other hand it does not mean that the men should go free. Nothing in our traditions endorses murder and murder should be punished, unless as I suspect the jury in the state case found that the men were acting in self defense.

The Supreme Court, in what is probably its most important decision of the year, decided that the Fourteenth Amendment’s Due Process Clause incorporates the Second Amendment’s right to possess a gun. The ruling prevents the states from passing laws prohibiting people from owning guns, although it leaves the door open for limited exceptions such as preventing convicted felon from owning guns.

The plurality opinion, written by Justice Alito, relying upon the Court’s Heller decision of two years ago, finds that the right of self defense is a fundamental right and that in order to maintain the right citizens must be allowed to have guns in their homes. In the process the Court found statutes in Chicago and Oak Park, Illinois which limited the right to possess guns to be unconstitutional.

In applying the Second Amendment to the states the Court reversed case law that has existed since the Nineteenth Century. The Bill of Rights originally applied only to the Federal Government. But after the Civil War the Fourteenth Amendment was adopted. Section One states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Several years after the Fourteenth Amendment was adopted the Supreme Court decided Cruikshank. In Cruikshank The Supreme Court exonerated a group of white men accused of killing a group of African Americans who dared to march through their hometown on the Fourth of July. Among the charges were depriving their victims of various constitutional rights, including the right to bear arms. The Supreme Court held that the Constitution does not guarantee the right to bear arms and therefore Cruikshank and his fellow murderers could not be convicted of depriving the African Americans of the right to bear arms.

The McDonald Court found a long history of self defense. It traces the common law right to the 1689 English Bill of Rights. In 1765 Blackstone call self defense “one of the fundamental rights of Englishmen,” At the Constitutional Convention both Federalists and Anti Federalists recognized the importance of self defense. By 1820 thirteen states recognized the right to bear arms in the state constitutions.

After the Civil War, southerners attempted to disarm African Americans, many of whom served in the Federal army. Congress fought back. The Freedmen’s Bureau Act of 1866, recognized

“the right . . . to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens . . . without respect to race or color, or previous condition of slavery.”

During the debate on the Fourteenth Amendment Senator Samuel Pomeroy described three “indispensable” “safeguards of liberty under our form of Government.” One of these,was the right to keep and bear arms: “Every man . . . should have the right to bear arms for the defense of himself and family and his home-stead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete.”

The test for incorporation is whether a right is is fundamental to our scheme of ordered liberty and system of justice. The Supreme Court found that based upon the history of the country and the history of the Fourteenth Amendment the right of self defense is fundamental to our scheme of ordered liberty and system of justice. As such Second Amendment right are incorporated into the Due Process Clause and are enforceable against the states.