Bearing or Scaring?

When do Second Amendment rights become unlawful?

            When a large group of Black Lives Matters protestors unexpectedly marched into their gated St. Louis community, white lawyers Patricia and Mark McCloskey grabbed their weapons. Patricia, dressed in capri leggings, armed herself with a pistol, and Mark, wearing a pink polo and light khakis, held an AR-15 rifle. They stood outside their million-dollar mansion.

The Black Lives Matters protestors were there with the goal of peacefully protesting at the Mayor’s house. They wanted the Mayor’s resignation for reading activists’ personal information on a live stream. As protestors marched through the community, the McCloskey’s moved from their terrace to the front lawn, bolstering and pointing the weapons at protestors.

brandishing weapons in a threatening manor and pointing a gun at someone, felonious assault with a weapon or protecting property and lives?

The McCloskey’s were later charged with felonious use of a weapon. The couple claims they were exercising their Second Amendment rights, but others believe they broke the law by brandishing the weapons in a threatening manner. Prosecutors argue that in St. Louis “it is illegal to wave weapons in a threatening manner.” However, the Missouri Attorney General expresses that “state law provides broad rights to Missourians who are protecting their property and lives from those who wish to do them harm.” A patchwork of laws creates confusion, making it extremely hard to punish behavior like that of the McCloskey’s. The Missouri governor does not believe the couple will get in trouble for their actions.

The right to bear arms is a guaranteed right to citizens of the United States granted by the Second Amendment of the Constitution. However, this right can only reach so far. Just how far has become more prevalent as recent protests have caused some to feel unsafe, leading them to use their arms as defense or as a show of intimidation.

            In a landmark case, District of Columbia v. Heller (2008), the Supreme Court held that the Second Amendment protected an individual right to possess a firearm for traditionally lawful purposes, such as self-defense within the home. In Ohio, it is legal to openly carry a licensed gun. If a person’s property is being attacked or threatened, he may not use deadly force unless he reasonably believes it is the only way to protect himself or another from being killed or receiving serious bodily harm. The McCloskey’s claimed that they were fearful for their lives and for their property. The protestors claim that they were being peaceful and showed no signs of danger.

In an Ohio case, State v. Dyer, it was stated that felonious assault requires a case by case analysis of the facts concurrent to the pointing of the gun. While merely pointing a gun at another will not support a felonious-assault conviction, the trier of fact may infer the existence of the attempt to cause physical harm element from the circumstances that surround, and indeed prompt the aiming of the deadly weapon. However, the claim of self-defense may dispel the felonious assault as the gun owner may have been afraid of being harmed.

            This subjective type of law makes it difficult to charge those involved as the owners claim to have been in fear for their lives. Others claim they should not have been afraid for their lives, so it seems justifications are present on both sides in the McCloskey case. The right to bear arms is a fundamental right guaranteed by the Constitution, but it must be exercised in a reasonable and responsible manner.

Should you find yourself facing criminal charges, gun charges or in need of a civil rights attorney, call Columbus defense attorney Joe Edwards today. (614) 309-0243

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