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FUMARE

Law, culture, and Catholicism...up in smoke!

Tuesday, October 11, 2005

Cousins Charged Under 1846 Anti-Dueling Law

The September 28, 2005 Detroit Free Press reports:

Five years into the 21st century, an 1846 anti-dueling law is being used to prosecute two cousins accused of getting in a knife fight outside their suburban Detroit home.

"Any person who shall engage in a duel with any deadly weapon, although no homicide ensue, or who shall challenge another to fight such as duel ... shall be guilty of a felony," says the law, with a penalty of up to 10 years in prison and a $5,000 fine.

***

Police say the cousins, ages 19 and 31, disagreed Monday over a $30 dollar debt.

The older man brandished a knife and challenged the younger man to fight outside their Mount Clemens home, and the younger man accepted, said Sheriff Mark Hackel.

"He could've done any number of things," Hackel told The Macomb Daily. "He could've called police, he could've fled the area. But he took on the challenge and became part of the problem."

The way I see it, the dueling cousins only did two things wrong.

First, they should have conducted their duel in their home, instead of outside. This alone, might have been enough to afford them with the Constitutional protection of Lawrence v. Texas. As Justice Kennedy explained in Lawrence: "The case does involve two adults who, with full and mutual consent from each other . . . The petitioners are entitled to respect for their private lives."

Second, had their duel been both private and sexual in nature (and please don't ask me what this might entail), they certainly would have been able to invoke the protections of Lawrence. Once again, Justice Kennedy explained in Lawrence: "The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government."

Then again, even had the dueling cousins done nothing differently, all they really need to do to avoid prosecution is to appeal to the "penumbras" of the Constitution. See Griswold v. Connecticut. Surely there must be something in there that could be used to invalidate the 1846 anti-Dueling law.

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