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Murphy on a Constitutional Right to Self-Defense & the Burden of Proof

By Lawrence Solum

Patrick Michael Murphy (University of Connecticut - School of Law) has posted Heller: A Constitutional Right to Self-Defense & the Burden of Proof in Criminal Trials on SSRN. Here is the abstract:

In Heller, The Supreme Court not only recognized the Second Amendment?s protection of the individual right to bear arms but also the related constitutional right to self-defense. This paper examines past case holdings, historic context of the Second Amendment, and the text of Heller itself. Part III asks ? assuming there is a constitutional right to self-defense ? are states foreclosed from shifting the burden of proving such to criminal defendants? This part examines the history of the burden of proof and the historical precedent for burden shifting as well as cases involving constitutional rights and burden shifting. It concludes that while states may be allowed to require defendants bear a burden of production of evidence supporting self-defense, they will no longer be permitted to shift the burden of proof.

Full post as published by Legal Theory Blog on June 30, 2010 (boomark / email).