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Heller and Self-Defense:
In his post below, David Kopel writes:
District of Columbia v. Heller clearly establishes self-defense (not just gun ownership for self-defense) as a constitutional right. In light of Heller, what are some cases from state courts or lower federal courts which might have to be reversed or modified? I am thinking particularly of cases which describe self-defense as a government-granted privilege, for which fewer due process and other protections are available than for a "right." I am not looking for gun regulation cases, but rather for cases about self-defense in general.
David, could you explain why you think Heller "clearly establishes self-defense (not just gun ownership for self-defense) as a constitutional right"? Off the top of my head, I tend to disagree with this claim about the scope of Heller. The fact that the Constitution protects a constitutional right to do X when it serves interest Y does not mean that there is a constitutional right to serve interest Y unrelated to X. I'm curious, what passage in Heller do you have in mind that suggests differently?
Philistine (mail):
Personally, I thought Scalia's opinion made a pretty good argument for a 9th amendment right of self-defense--even if not quite phrased that way.

He did refer to a "right" of self-defense in summing up the commentary (pg. 56).


As the quotations earlier in this opinion demonstrate,
the inherent right of self-defense has been central to the
Second Amendment right.

7.15.2008 4:08pm
Mike& (mail):
Page 56 of the slip reads: "As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right."

That language seems to treat the two rights as analytically distinct, viz., "the inherent right of self-defense" and "the Second Amendment right."

I read Heller as stating that one has a right to self-defense in one's home. But I do see the right to self-defense in one's home as being distinct from the right to use a firearm for self defense. Slip op. at 57-58. "Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid."
7.15.2008 4:11pm
Mike& (mail):
Pages 60-61: "It is inconceivable that this law would have been enforced against a person exercising his right to self-defense on New Year's Day against such drunken hooligans."

When I used the "search" feature in Adobe reader for "self-defense," I got 86 hits. (This would, of course, also include hits for the syllabus and dissent.) It seems that the right to self-defense was central to the Court's analysis.
7.15.2008 4:13pm
John (mail):
Scalia also noted:

"JUSTICE BREYER's assertion that individual self-defense is merely a "subsidiary interest" of the right to keep and bear arms, see post, at 36, is profoundly mistaken. He bases that assertion solely upon the prologue—but that can only show that self defense had little to do with the right's codification; it was the central component of the right itself." (Slip Op. at 26)
7.15.2008 4:13pm
Mike& (mail):
The fact that the Constitution protects a constitutional right to do X when it serves interest Y does not mean that there is a constitutional right to serve interest Y unrelated to X.

I'm trying to think of some cases where the Court has held: "You may do X to serve Y. But you do not have the right to do Y generally."

If the Court held: "You may publish newspapers in the exercise of one's free speech right," would one say that the Court did not recognize a right to free speech more generally?

There may be some such examples. I honestly don't know. I would be interested in them.
7.15.2008 4:18pm
OrinKerr:
Thanks for the quotes, all.

I suppose that's a possible reading, but doesn't it seem unlikely that Justice Scalia would believe in a general constitutional right to self-defense founded in the emanations and penumbras of various textual constitutional provisions? A It seems like a rather un-Scalia-like reading of the opinion.
7.15.2008 4:19pm
darelf:
I suppose I read Heller as assuming a natural right not a constitutional right to self-defense.... though I would think the former class of rights should be accorded more deference than the latter...

There I go using common sense again....
7.15.2008 4:19pm
DiverDan (mail):
This may be picking nits, but I read Scalia's opinion in Heller as recognizing a pre-existing "inherent" right of self-defense; just like the right to keep and bear arms, that right does not arise by virtue of the Constitution, but pre-existed the Constitution, and the Second Amendment (with respect to arms) merely prohibits the government from infringing upon that right. I think Heller certainly supports a "natural law" claim to a right of self-defense which cannot be infringed by the government. There is certainly support for this view in the philosophical record - Hobbes, in The Leviathan, recognized the right of defending one's own life as the single right one could NOT bargain away to government in the formation of civil society.
7.15.2008 4:20pm
OrinKerr:
Mike,

The Fifth Amendment confers a right to remain silent to avoid self-incrimination in a criminal case. However, you have no general right to remain silent generally.
7.15.2008 4:21pm
Elliot123 (mail):
Does one have a general right to avoid self-incrimnation in a criminal case? Is silence a means of exercising such a right?
7.15.2008 4:26pm
Mike& (mail):
I suppose that's a possible reading, but doesn't it seem unlikely that Justice Scalia would believe in a general constitutional right to self-defense founded in the emanations and penumbras of various textual constitutional provisions? A It seems like a rather un-Scalia-like reading of the opinion.

That's a good point. But is Scalia against all so-called implied rights?

Sovereign immunity is not mentioned in the Constitution. And the Eleventh Amendment only mentioned diversity actions in federal court, which would seem to suggest that sovereign immunity is not "right" of the states. Expressio unius est exclusio alterius, after all.

Nor, for that matter, is federalism. Federalism is a structural part of the Constitution. But "structure" is just a nice way of saying, "non-textual."

So it seems Scalia is willing to look beyond the text of the Constitution when "deeply rooted" rights are at issue.
7.15.2008 4:27pm
Mike& (mail):
The Fifth Amendment confers a right to remain silent to avoid self-incrimination in a criminal case. However, you have no general right to remain silent generally.

Right. But you do have the right to avoid self-incrimination more generally.
7.15.2008 4:27pm
Cory Campbell:
Mike,

The Fifth Amendment confers a right to remain silent to avoid self-incrimination in a criminal case. However, you have no general right to remain silent generally.


Surely you're not suggesting that Heller only confers a right to self defense insomuch as it supports your right to bear arms? I'm confused at your argument.
7.15.2008 4:29pm
Flydiveski:
Correct me if I'm wrong (here they come!), but Orin's understanding of the opinion would lead to the conclusion that I have a right to have a gun to defend myself, but not necessarily the right to defend myself with it. Or, should I understand him that I can only defend myself if I have a gun?
7.15.2008 4:29pm
Mike& (mail):
So it seems Scalia is willing to look beyond the text of the Constitution when "deeply rooted" rights are at issue.

IIRC hasn't Scalia endorsed (or at least conceded) that substantive due process protects rights "implicit in the concept of ordered liberty," and of that have long histories or are "deeply rooted" in American society?

If so, a pro-self-defense right reading of Heller would be consistent with Scalia's jurisprudence.
7.15.2008 4:30pm
The Unbeliever:
What DiverDan said. Scalia didn't go penumbra-diving when describing an inherent right to self defense, it sounds more like he acknowledges it as predating the Constitution. The right to bear arms is supposedely one of these pre-existing rights as well, but the Founders saw need to specifically include it in the Bill of Rights (with good reason, given European history at that point... and recent European law as well, come to think of it).

Combining the two may give an inherent right to use firearms in self defense, I'll defer to the others who have quotes on hand to agree/disagree with the statement. But I wonder if my usual argument of reductio ad absurdum for weapons and self defense works here? I.e. if you're not allowed to use a firearm for self-defense, can you use a sword? a club? a knife? a hammer? your own fists and feet? If you want to place an upper limit on the efficiency of self-defense implements, you have to draw a line somewhere. And I don't see the Founders drawing that maximum line anywhere in the text or their contemporary writings.
7.15.2008 4:33pm
John Jenkins (mail):
There is no general right to avoid self-incrimination. You have a right not to be coerced into incriminating yourself by testifying against your will, which right has been read as the "right to remain silent."

People nonetheless incriminate themselves all the time, by confession, or by writing things down they should not have (such records not being protected by the 5th Amendment, but possibly by the 4th depending on the circumstances).

"Nor, for that matter, is federalism. Federalism is a structural part of the Constitution. But "structure" is just a nice way of saying, 'non-textual.'"

What? Federalism is very much a part of the test of the Constitution (reservation of powers to the states, specifically enumerating the powers of the federal government, etc.). Is your objection that they didn't call it federalism?

All rights don't flow from the U.S. Constitution. The right to self-defense predates the Constitution by a long time. Just because a Constitutional right serves a common-law right, it does not follow that the Constitution directly protects that right (especially under existing 9th Amendment jurisprudence, such as it is).
7.15.2008 4:43pm
ohwilleke:
OrinKerr,

The closest analogy to the Second Amendment inherently recognizing an underlying constitutional right to self-defense would be the 11th Amendment, which has been interpreted as recognizing an underlying constitutional right of the several states to sovereign immunity.

The language of the 11th Amendment doesn't go nearly so far by its terms, but even Scalia has no problem with this implication, nor to my knowledge does Justice Thomas.
7.15.2008 4:43pm
OrinKerr:
Correct me if I'm wrong (here they come!),

I think there are two distinct issues here: 1) Does the Second Amendment right to keep and bear arms include the right to use the arms in self-defense? 2) Does the Heller opinion establish or indicate the existence of a general constitutional right to self defense apart from there being any guns at issue. Now that I look at it, David's post is possibly ambiguous as to which he had in mind; when I read it the first time, though, I thought he means the latter. So no, I wasn't addressing the former.
7.15.2008 4:46pm
Helen:
I think I'm as confused as Mike is. The right to remain silent to avoid self-incrimination is a backwards example of the question asked. I have the right, for example, to refrain from drawing a picture that would incriminate me, or carrying out a pantomime that would incriminate me. What we're looking for is an example where one would retain the initial right X (eg., remain silent) but not the purpose Y (eg., avoid self-incrimination.) I'm tring, but I just can't think of an example. Can anyone help out?
7.15.2008 4:50pm
OrinKerr:
ohwilleke,

Yes, that's true. At the same time, I tend to think that doing so required them to pretty much ditch their long-held views of proper constitutional interpretation; maybe the point is that they'll ditch their principles when the politics calls for it. See also Bush v. Gore.
7.15.2008 4:50pm
Mike& (mail):
There is no general right to avoid self-incrimination.

See the Fifth Amendment: "nor shall be compelled in any criminal case to be a witness against himself." This is more generally referred to as the right against self-incrimination.

What? Federalism is very much a part of the test of the Constitution (reservation of powers to the states, specifically enumerating the powers of the federal government, etc.). Is your objection that they didn't call it federalism?

Um, you pretty much illustrated the difference between constitutional text and constitutional structure. Yes, there are different. And yes, this matters.
7.15.2008 4:55pm
GV:
Assume you're in a state that does not codify a right to self-defense. Someone breaks into your home. Would not adopting Kopel's position mean that you could shoot the burglar with a gun to protect yourself, but not punch the burglar in the face?
7.15.2008 4:56pm
Joe Jackson:
I second what DiverDan said at 3:20. The right to self defense predates the Constitution. Blackstone described self defense as "the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society."
7.15.2008 4:56pm
Publius098 (mail):
Orin:

This is logic, not solely law. The right to self defense is clearly implied by the decision.

Heller says that the 2cd Am. guarantees the right to own a gun for personal self defense in the home. The right to self-defense is a corollary of the 2cd Amendment itself. Think of it this way: the Court's opinion essentially says the 2cd Am. means the following: "Citizens have gun ownership right IFF (the gun is in home AND its self defense)". Since it's a biconditional, and we know independently from the text/obvious context of the 2cd Am. that the first proposition (gun ownership right) is T, the second half of the biconditional is necessarily T- that is there is self-defense and in the home. This follows because if the second half were F- e.g. if either of the disjuncts were F- the biconditional as a whole would be F. Thus, "self defense" is T, and a right to self defense necessarily exists. The Court's construction of the 2cd Am. is such that you are not "keeping and bearing arms" if you are unable to use those arms for personal protection.
7.15.2008 4:57pm
wfjag:
ohwilleke:

I'd think that the right to vote would be a closer analogy. The Constitution does not expressly grant the franchise (to men, anyway), although the Supreme Court has had no trouble concluding that it's fundamental.

By analogy, an individual right to bear arms makes no sense if there is no fundamental right of self-defense, even in the absence of an express Constitutional provision.

However, how you analyze the issue may depend on your philsophy of the Constitution. Do you start from the idea that the Constitution creates rights? Or, do you start from the idea that the US Constitution was created as a written Constitution so that only certain, limited powers were delegated by the citizens to the federal government? If you start from the first point of view, you have to look for a grant of a right of self-defense, express or implied. If you start from the other point of view, then as there is no prohibition on a right of self-defense, the power to limit it was not generally delegated to the federal government.
7.15.2008 4:58pm
Jeffery W Wilson (www):
GV:


Assume you're in a state that does not codify a right to self-defense.


Why should I need to depend on the state to enumerate my rights? Isn't that somewhat limiting?
7.15.2008 4:59pm
wfjag:

but doesn't it seem unlikely that Justice Scalia would believe in a general constitutional right to self-defense founded in the emanations and penumbras of various textual constitutional provisions? A It seems like a rather un-Scalia-like reading of the opinion.


Scalia does Douglas -- Professor, do you stay up at night trying to think of ways to terrorize us? If so, it seems to be working.
7.15.2008 5:01pm
Mike& (mail):
I think I'm as confused as Mike is.

I think Orin's post listed a formulation of the "reverse fallacy of accident," a/k/a the specific to general fallacy. (Orin's post wasn't fallacious. Rather, he was saying that Post's post might have fallacious.)

For example, as a matter of logic, just because you have a right to use a firearm for self-defense does not mean that you have a right to self-defense. Using the Wikipedia example: Just because a surgeon has the right to cut you does not mean that there is a general right to cut people.

This is basic logic. In that regard, Orin was correct.

What's controversial, I think, is the claim that Heller recognized a right to self-defense generally. I think it did, and I listed the reasons why. Orin disagrees (it seems).

So here we are...
7.15.2008 5:06pm
Ben P (mail):

Why should I need to depend on the state to enumerate my rights? Isn't that somewhat limiting?


I wrote about this in the other post, but I think the difference is clearly at the fringes of Self Defense.

If self defense is an affirmative constitutional right, State Prosecutors fact based decisions on whether or not to prosecute a particular incident becomes a particular constitutional question.

But if Self Defense is a natural right recognized at common law, there is more leeway for prosecutors and judges to make decisions according to facts and common sense.

Assuming no challenge and no other provocation Shooting an armed person who's broken into your home would be self defense nearly anywhere. Shooting an unarmed person who's broken into your home would likely be self defense but might be suspect in a few places. Shooting a man who's unarmed and is merely trespassing in your yard would probably not be valid self defense in a lot of places. Is the difference between the three constitutional or just common sense?
7.15.2008 5:12pm
OrinKerr:
Scalia does Douglas -- Professor, do you stay up at night trying to think of ways to terrorize us? If so, it seems to be working.

Funny. Although I don't need to think very hard; The courts always seem to provide lots of material.
7.15.2008 5:25pm
hattio1:
Helen,
Unfortunately, you do not have a general right not to incriminate yourself. You can be forced to appear in a line-up, wear particular clothing, say particular things, or make particular motions. I don't think you could be forced to draw a picture, but these actions they can force could definitely incriminate you (as could drawing DNA, and giving fingerprints, hair samples, saliva samples etc.)
7.15.2008 5:25pm
James Gibson (mail):
Personally I hate when people do the X verses Y routine, it makes it sound like an algebra test, rather then a test of law. Besides your wording is just a means of hiding the fact that you still hold to the argument that self-Defense with a gun is a by product of the right to have arms for the militia and not a right in itself.

The problem with your argument is that it can neither be reversed (like a good mathematical equation) or maintain the right of X without Y (your comment that there is no right to serve Y without X suggests the ability to perform X without Y with no evidence).

More to the point, if you allow people to own weapons for militia service, but then prohibit them from using them for hunting or, more importantly, self defense you maintain the premise that the arms are strictly for military purposes to maintain the militia. But is the militia maintained? If the mens' skill at shooting degrades from lack of practice due to the prohibition on them using the arms for hunting or sports doesn't this degrade the militia and, in the process, the right to maintain one.

Additionally, if a man is killed in his home by an intruder because he was prohibited from using his arm for self defense doesn't the militia loose both the man and his arm. Of course you can place the weapon in a secured storage area to insure it isn't stolen and thus insure its availability to the militia, but the man will still be killed leaving the arm unused. Thus in order to maintain the pristine purpose on which the arm was acquired, you in the end sacrifice the people who are to use the arms or are to be defended by them.
7.15.2008 5:31pm
Henry Bramlet (mail):
Reading through the opinion, it seems to me that Scalia was presented with a problem. He reasoned (quite well) that the RTBA was not conditional on militia service. Part of that was contingent on the analysis of the text, but he also went another step to show that people of the time felt they had individual rights to self defense. And there is no way that a collective right could square with that individual right.

But that left one item open:

What was the scope of the protection? That is, where could the government infringe?

So in order for Scalia to answer that, he had to determine the over-riding interest (a free citizen's militia). Now, which weapons were associated with militia service? According to documentation, it would be the arms they brought with them from the home- those weapons used in their day-to-day life.

So now, in order to determine the scope of "Infringement Free" weapons, Scalia had to determine what types of activities would qualify and which weapons would plausibly be associated with those activities. Scalia notes that these activities would include all "law abiding activities"- self defense being one of them.

So in the end, I do not think Scalia said that the 2nd amendment guarantees a right to self defense. Instead, I think he said the right exists, and as a result of that right existing, it would be considered a "law abiding" activity that drives a class of gun ownership which is protected.

That said, I don't think it is an accident that Scalia mentions Self Defense so much- even though it is a secondary requirement. I think he has pretty much laid the groundwork for someone to rule that the 9th guarantees the right.
7.15.2008 5:33pm
Mike& (mail):
Unfortunately, you do not have a general right not to incriminate yourself.

Someone had better talk to LaFave. The old fool lists the "privilege against self-incrimination" (direct quote!) in his treatises. See the TOC here, for one example. Under "More Information" you can access the Table of Contents. To save yourself some time, use the search feature for "self-incrimination." You'll find five hits. But, again, who trusts what that LaFave guy says, anyway?
7.15.2008 5:33pm
OrinKerr:
Publius098 writes:
This is logic, not solely law. The right to self defense is clearly implied by the decision.

Heller says that the 2cd Am. guarantees the right to own a gun for personal self defense in the home. The right to self-defense is a corollary of the 2cd Amendment itself. Think of it this way: the Court's opinion essentially says the 2cd Am. means the following: "Citizens have gun ownership right IFF (the gun is in home AND its self defense)". Since it's a biconditional, and we know independently from the text/obvious context of the 2cd Am. that the first proposition (gun ownership right) is T, the second half of the biconditional is necessarily T- that is there is self-defense and in the home. This follows because if the second half were F- e.g. if either of the disjuncts were F- the biconditional as a whole would be F. Thus, "self defense" is T, and a right to self defense necessarily exists. The Court's construction of the 2cd Am. is such that you are not "keeping and bearing arms" if you are unable to use those arms for personal protection.
I believe this logic is erroneous. The elements of "self defense" and "in the home" are conditions when the gun ownership right exists. But this tells us nothing at all about the separate question of whether the self defense right exists independently of gun ownership.

Consider an analogy. Imagine we know that you have a right to watch a movie in the theater if you buy a ticket and you are wearing shoes. This doesn't prove that there is an independent right to wear shoes.
7.15.2008 5:36pm
Mike& (mail):
I think he has pretty much laid the groundwork for someone to rule that the 9th guarantees the right.

I just had a thought: Can anyone here think of any federal court panel where three judges would right that a right exists under the Ninth Amendment? Not even talking random selection here. Are there three judges (or even two, I guess, if we assume a 2-1 case that will not get taken en banc).

Can anyone list any state whose highest court contains a majority of members who would decide a case based on the Ninth Amendment?

A state appellate court?

Not being snarky here. But if Scalia is teeing up the ball, well, he'll by definition need a hitter.
7.15.2008 5:37pm
OrinKerr:
Mike writes:
Someone had better talk to LaFave. The old fool lists the "privilege against self-incrimination" (direct quote!) in his treatises. See the TOC here, for one example. Under "More Information" you can access the Table of Contents. To save yourself some time, use the search feature for "self-incrimination." You'll find five hits. But, again, who trusts what that LaFave guy says, anyway?
Mike, I hope you just have some free time and are feeling like being silly here; the game of "take a short phrase and imagine a meaning he obviously didn't intend" seems like an odd way to pass the time.
7.15.2008 5:41pm
Mike& (mail):
Mike, I hope you just have some free time and are feeling like being silly here; the game of "take a short phrase and imagine a meaning he obviously didn't intend" seems like an odd way to pass the time.

I'm not being silly, and I'm surprised by your suggestion. Are you say that there is no general right against self-incrimination?

A quick Ctrl+F of Miranda v. Arizona shows around 18 hits for "self-incrimination."

And there is his 1935 law review article that surveys the early meaning of the right.

One might argue that this right is narrow. But are you really saying that no such right exists?
7.15.2008 5:53pm
The Unbeliever:
Consider an analogy. Imagine we know that you have a right to watch a movie in the theater if you buy a ticket and you are wearing shoes. This doesn't prove that there is an independent right to wear shoes.
Well, to apply this analogy to the case at hand, Scalia is assuming a natural right to wear clothes, independant of the Constitution. Surely we don't need clothing to be an articulated individual right in an Amendment for it to exist?

If we really wanted to get technical, don't we have precedent in that the individual rights to "life, liberty, and the pursuit of happiness" doesn't actually exist in the text of the Constitution, but must be assumed for the rest of the rights to make sense?
7.15.2008 5:53pm
Mike& (mail):
Incidentally, Washington v. Glcksberg was the opinion I touched on earlier. While Scalia did not write the opinion, he did join it. He did not write a separate concurrence. He also cited to it as authority in his dissent in Lawrence v. Texas. Scalia thus recognize that there are unstated constitutional rights.

Given that actual language from Heller suggests that there is an independent right to self-defense, and given that recognizing deeply rooted but unstated rights does contra to Scalia's jurisprudence; the evidence seems clear that Heller recognizes a right to self defense in one's home.
7.15.2008 5:59pm
Publius098 (mail):
Orin:

Yeh, I realized my mistake after I posted it; you were asking whether there is an *independent* right to self defense. That cannot be answered by pure logic.

But the opinion does seem to read the 2cd amendment as at least recognizing a narrow form of self-defense, provided it's in the home and with a gun, right?

As for the existence of a general right, I agree with the other posters: Scalia seems to have presumed as a background fact that the right exists. It wasn't necessary for the case, so I doubt other courts will feel bound by it.
7.15.2008 6:03pm
Dilan Esper (mail) (www):
IIRC hasn't Scalia endorsed (or at least conceded) that substantive due process protects rights "implicit in the concept of ordered liberty," and of that have long histories or are "deeply rooted" in American society? If so, a pro-self-defense right reading of Heller would be consistent with Scalia's jurisprudence.

It wouldn't be consistent with Michael H. v. Gerald D., because he doesn't accept unenumerated rights on the level of generality of "self-defense"-- he'd want specific evidence that a specific practice was seen as outside the government's power at the time the Constitution was adopted.
7.15.2008 6:21pm
OrinKerr:
Mike,

We're not actually in any disagreement; this is just a misunderstanding about the one phrase I wrote. To clarify, I'm just pointing out that the constitutional right against self incrimination only applies in very narrow and specific circumstances: the right only applies in a very small subset of cases that you might think of as generally raising self-incrimination issues. So you don't have the right to remain silent if your boss asks you if you left work early to go out for beers: if your wife asks you where you were last night; if your mom asks you if you stole a cookie from the cookie jar; or if a cop asks you about crimes committed outside the statute of limitations.
7.15.2008 6:27pm
Gordo:
One man's "emanation and penumbra" is another man's "legislating from the bench." And I'm sure both former Justice Douglas was and Justice Scalia is willing to find penumbras and emanations when needed to advance an ideological position.
7.15.2008 6:32pm
James Gibson (mail):
Orin Wrote: I believe this logic is erroneous. The elements of "self defense" and "in the home" are conditions when the gun ownership right exists. But this tells us nothing at all about the separate question of whether the self defense right exists independently of gun ownership.

I do hope the right exists separate from gun ownership. If I'm attacked on the road, or at home, and can only defend myself with a 2X4 the right better be broader then just applying when using a gun while at home. As it is, if you read the dissenters, they clearly were not disagreeing with the majority on the right to self-defense only whether you had a right to use a handgun for self-defense.

Besides Breyer did make this comment on page 36 of his dissent: Further, any self-defense interest at the time of the Framing could not have focused exclusively upon urbancrime related dangers. Two hundred years ago, most Americans, many living on the frontier, would likely have thought of self-defense primarily in terms of outbreaks of fighting with Indian tribes, rebellions such as Shays'Rebellion, marauders, and crime-related dangers to travelers on the roads, on footpaths, or along waterways. Clearly,according to Breyer, self-defense in the framers mind hardly was limited to the home if it included traveling on roads, footpaths or along waterways.
7.15.2008 6:42pm
_anonymous_:
OrinKerr wrote:

1) Does the Second Amendment right to keep and bear arms include the right to use the arms in self-defense? 2) Does the Heller opinion establish or indicate the existence of a general constitutional right to self defense apart from there being any guns at issue.

Are these really two separate issues? The Second Amendment says "arms", not merely "firearms". Surely knives are also arms, and indeed one's fists could also be considered arms if used as weapons in self-defense. It seems most self-defense would indeed using arms (weapons) of some kind.
7.15.2008 6:42pm
zippypinhead:
Blackstone long ago recognized the existence of a fundamental, natural right to self-defense. At bottom, my read of Scalia's opinion is that, to the extent one's natural right to use deadly force in self-defense in the home attaches, the Second Amendment permits one to utilize "arms" in the exercise thereof. However, Heller does nothing to expand or otherwise change this inherent right as it already exists. You have the same right to shoot somebody in self-defense in your home as you have to bash in his skull with a candlestick, stab him with a letter opener, or employ any other legal tool that is capable of becoming a deadly weapon when used for the purpose of inflicting bodily harm.

But the self-defense right is clearly conditional and must be exercised in a "reasonable" manner given the circumstances - if my fading memory of Yale Kamisar's spin on this exact topic in my long-ago 1L crim law course is correct, one's right is limited in several ways. For example: (a) the self-defense must be proportional to the nature of the attack - thus no matter how much he wished the case to be different, Professor Kamisar had no natural [or Constitutional] right to shoot a student whose inane comments gave him a headache; (b) the self-defense right can be lost if you are the aggressor - thus, Professor Kamisar's right could be questioned if he initiated a confrontation by throwing his hornbook at the offending student, even if the confrontation subsequently escalated such that the use of deadly force by the Professor might otherwise be appropriate; and (c) the self-defense right does not justify use of force where other effective options, such as retreat, are available - thus Professor Kamisar couldn't shoot the aforementioned student if simply refusing to answer the door when the student came calling during office hours would successfully keep him at bay.

Hmmm... now that I thing about it -- for a guy who probably didn't own a gun, at least in that particular class 25 or so years ago, Professor Kamisar sure did fantasize a lot about shooting students! ;~)
7.15.2008 6:44pm
Dave Hardy (mail) (www):
Scalia was a leader in the now moribund federalism/10th Amendment cases. Some of those involved going beyond "Congress has no enumerated power over X" to something closer to "X is a traditionally State controlled arena, and this contributes to our conclusion that Congress has no power over X." To that extent I think he's willing to go beyond textualism and find rights that are not explicitly stated, but inherent in the constitutional scheme of things.
7.15.2008 6:45pm
wuzzagrunt (mail):
Self defense is a natural right that predates the US constitution by a bit. It would be covered by the 9th Amendment as a right retained, and not disparaged by the enumeration of certain [other] rights, by the people. It is an unenumerated right in the sense that it is too freakin' obvious to bother including it in the list of enumerated rights. It doesn't even matter what the courts or Congress say on the subject. One can be imprisoned for exercising one's rights, but rights do not cease to exist because government refuses to recognize them.

The whole 'X in service of Y, but not necessarily Y' deal is is just a clever ploy to keep law students under the yoke of professorial tyranny.
7.15.2008 7:27pm
CDR D (mail):
>>>Blackstone long ago recognized...

***

Predates Blackstone.

"There exists a law, not written down anywhere, but inborn in our hearts; a law which comes to us not by training or custom or reading but by derivation and absorption and adoption from nature itself; a law which has come to us not from theory but from practice, not by instruction but by natural intuition. I refer to the law which lays down that, if our lives are endangered by plots or violence or armed robbers or enemies, any and every method of protecting ourselvels is morally right. When weapons reduce them to silence, the laws no longer expect one to await their pronouncements. For people who decide to wait for these will have to wait for justice, too - and meanwhile they must suffer injustice first. Indeed, even the wisdom of the law itself, by a sort of tacit implication, permits self-defence, because it does not actually forbid men to kill; what it does, instead, is to forbid the bearing of a weapon with the intention to kill. When, therefore, an inquiry passes beyond the mere question of the weapon and starts to consider the motive, a man who has used arms in self-defence is not regarded as having carried them with a homocidal aim."

- Cicero, Selected Political Speeches 222 -
7.15.2008 7:30pm
Mike& (mail):
Blackstone long ago recognized the existence of a fundamental, natural right to self-defense.

Unfortunately, I think we're at the "agree to disagree" phase with Orin. To me, though, I wonder: What right is not more implied than the right to self-defense?

What sources would we look to to support our claim?

If we looked to state criminal laws, we'd see an exemptions from homicide statutes for self-defense. In every state. For probably as long as there has been positive law in the state. Aren't long-accepted exceptions from laws evidence of a pre-existing right?

If we looked to the tomes that influenced the Founders, we'd see self-defense mentioned in Blackstone, Hobbes, and Locke.

It'd just be really strange if even Scalia would not recognize the existence of this right. How could it not be deeply rooted? What right is more deeply rooted in our Nation's history, especially considering our frontier origins?

I realize that goes beyond the narrow (heh) question here, which is whether Heller recognizes the right to self-defense. It seems Heller's language does that. And even Scalia's past wouldn't cause him to hold otherwise. (In fact, one might say he'd be influenced by the historical rooting of the right.)

I'm hoping for one final rebuttal from Orin, who is a brilliant guy who argues in good faith. Which thus makes it very frustrating for me that we don't agree on this. How can he believe that Heller does not recognize a right to self-defense?
7.15.2008 7:32pm
zippypinhead:
CDR D wrote:
>>>Blackstone long ago recognized...

***

Predates Blackstone.

Blackstone's Commentaries didn't originate the right, he just recognized that it already existed as a primary law of nature. Written record of the right predates Cicero. There are places in the Old Testament that fairly clearly imply both individual and collective rights to self-defense. But then again there are a few statements in the New Testament (e.g., turning the other cheek) that tend to muddy up the doctrine a bit...
7.15.2008 7:37pm
Jiffy:
Why is the fact that a right was recognized at common law prior to the Constitution an argument that the Constitution protects that right? Men may have traditionally had all sorts of rights with respect to their wives prior to the Constitution; are those rights constitutionally protected?
7.15.2008 7:45pm
Respondent:
Prof. Kerr,

Three points:

1) While one can question whether the other justices in the Bush majority really felt that the per curiam's reasoning was valid, I think it's undeniable that you're correct in the case of Justice Scalia. It becomes abundantly clear to anyone who's paid close to attention to the man's reactions each time he's been asked about the decision that Justice Scalia has some kind of deep seated guilt about joining the per curiam opinion (and perhaps the concurrence, although I doubt it), and therefore exhibits reactions to questioning like a man in denial. His tone of voice, body language, deneral demeanor, and substantive comments he gices in response pretty obviously reflect a feeling of insecurity about the decision. (E.g. his frequent comment to "get over it", and his really bizzare reaction on one occasion where he said that the court had got it right in an almost comical tone and demeanor, the way a child sometimes sticks to his story even after it's become obvious that he's lying.)

(I know that these types of comments often get construed as the sort of partisan hypebole banned from the comment thread, but I assure you I write this as a person with no partisan interest in the matter at hand; this is simply my personal observation and I can only hope that readers who know what I'm talking about, having similarly paid close attention to Justice Scalia's reactions to Bush v. Gore questions, will appreciate what I have to say and/or comment in response. Similarly, those unfamiliar with these reactions who are still willing to give me the benefit of the doubt that I'm not writing as a partisan hack, can research the matter for themselves. I'm confident that those who could care less either way will reach the same conclusion.)

2) As for the eleventh amendment, while the conservative majority's jurisprudence on the subject has been a favorit whipping boy for liberal academics delighted to "expose" inconsistancies in the jurisprudence of the conservative justices, I think a fair reading of the both their opinions and of the relevant history would demonstrates that there is nothing unoriginalist or even untextualist about the interpeting the constitution to protect state sovereign immunity in state court. The basic point is that states were never made to abrogate their sovereign immunity in their own courts under even the original constitution. The framers did want them to be subject to individual suit, so they allowed to be sued in federal court. But many of those who ratfied the document evidently didn't forsee the can of worms that could open, so, presto, they ratified the eleventh amendment. The amendment didn't need to provide for sovereign immunity in state court because it had never been taken away. This is akin to the "public use" clause of the fifth amendment, which doesn't guarantee just compensation for "private use" takings, but doesn't need to ban private use takings since they had long been held to be utterly lawless, and were understood to be well within the core of the property component of the due process clause.

3)There can be no doubt that Justice Scalia would not interpet the ninth amendment to cover a judicially enforceable right to self defense. Despite the ninth amendment's warning that the bill of rights "shall not be construed" to "deny or disparage othe[r rights] retained by the people", the most natural reading of "construed" as being directed at the courts, and the copious historical background that shows that one of the chief concenrs leading to the amendment was that judges would use the bill of rights to deny the existence of others, Justice Scalia has taken the explicitly astounding position that the right is legally unenforceable. There's no need to speculate about penumbras since Justice Scalia has already gone on record with his viewpoint of the ninth amendment.
7.15.2008 7:47pm
Respondent:
*Justice Scalia has explicitly taken the astounding position
7.15.2008 7:49pm
ohwilleke:
@wfjag:

The U.S. Constitution does expressly guarantee a "Republican form of government" but does not establish a right to vote. You do not have a right to vote simply because you are eighteen years old, for example (even in federal elections). The right to vote may be constitutionally limited to property owners (although probably not contingent upon tax payments by them), non-felons, the literate (if applied in a non-discriminatory manner), or in any other manner that one's creativity can devise with a rational basis. There are equal protection cases that forbid those who have the right to vote from having an unequal say, but that isn't the same thing. Similarly, so long as there is some backstop of Republican government, it would not be unconstitutional to eliminate, for example, everyone's right to vote in local elections entirely and instead have an early 20th century French/Italian system of government where a higher level of government appointed prefects to handle local government. Indeed, the relationship between county government and subcounty government in Virginia has just this character.

The constitutional limitation is one what form the right may take, if it exists.

Similarly, there is no constitutional right to appeal a criminal conviction. There is a constitutional right to habeas corpus (which was the sole means of review of federal criminal convictions prior to the late 1800s), and there are a variety of rights that govern what characteristics must be present in a criminal appeal if a state or the federal government chooses to make this procedural option available, but there is no requirement that legislation create a right to an appeal of a criminal conviction in the first place.

The right to self-defense that appears to go with the Second Amendment does not appear to be of this character. It is not at all obvious, particularly after Heller, that the right to self-defense could be eliminated entirely and that the Second Amendment merely governs how it may be exercised.

Of course, this is an angels on pinheads analysis because no state is likely to do so in the near future, and the right to self-defense with deadly force (which all states make available as a defense even to ex-cons, so long as one is not committing a crime), which has historically been subject to less regulation than elements of the right to bear arms (like bans on possession by felons) whose regulation Heller expressly approves.

One interesting line of cases that a constitutional right to self-defense might address is the right of innocent people to self-defense from law enforcement in cases of mistaken searches and seizure, a limitation on the right to self-defense one might imagine a state enacting, which some (but not all) state courts have been surprisingly tenatious in protecting on a common law basis.
7.15.2008 7:52pm
zippypinhead:
Unfortunately, I think we're at the "agree to disagree" phase with Orin. . . .

I'm hoping for one final rebuttal from Orin, who is a brilliant guy who argues in good faith. Which thus makes it very frustrating for me that we don't agree on this. How can he believe that Heller does not recognize a right to self-defense?

How about this for a compromise: If Dave Kopel had written "District of Columbia v. Heller clearly recognizes self-defense. . . as a natural right that is therefore also an implied constitutional right" would that be something everyone could agree on? Heller didn't "establish" self-defense as a right -- perhaps Professor Kerr was [properly] focusing on Dave's sloppy language?

Incidentally, as a general proposition when this pinhead doesn't agree with Professor Kerr on a point of criminal law, I first assume I'm wrong until proven otherwise. Here, tho, I think I'll risk it...
7.15.2008 7:59pm
DangerMouse:
I'd like to hear of a scenario where a person DOESN'T have the right of self-defense.
7.15.2008 8:24pm
DaSarge (mail):
As I recall, Federalist 51 states that the Constitution incorporates all the traditional liberties of Englishmen. Heller makes clear that keeping and bearing arms is one of those rights. The 2nd Amendment does not create the right; it states the already existing right may not be infringed. Ditto the 1st and 4th Amendments.

I think that is so for self-defense, as well. One does not need to look to the Bill of Rights to find a right to self-defense. The right was extant at Ratification; the Constitution does not create the right but, rather, preserves it. What Scalia said in Heller may be dicta, but it is hard to separate bearing arms from self-defense.

This is not an idle debate. The UK has abolished the right to self defense, thereby vindicating the Anti-Federalists (that Parliament/Congress is as big a threat to liberty as the Crown/Executive). Many states has severely attenuated the right, including my state (WA).
7.15.2008 8:30pm
FlimFlamSam:
It seems brutally clear to me, and I'm surprised there's much dispute about this, that Scalia was describing the pre-existing natural right to self-defense.
7.15.2008 8:46pm
EPluribusMoney (mail):
Self defense doesn't need to be in the Constitution and Scalia is not reading it into the Constitution since it is a law of nature that pre-dates and overrules the Constitution. The Constitution does not give us rights, it keeps the government from abridging those rights and any attempt by government to abridge the right of self defense would on its face be void.
7.15.2008 9:14pm
Doc W (mail):
The right of self-defense is in the preamble to 2A. My security, and that of my family, against murder, assault, and robbery is part of the security of a free state. The militia, whether in the form of organized military units or more generally an armed citizenry, is necessary to said security. So, we have the right to keep and bear arms. The arms won't contribute to security unless we can use them. And it's absurd to suggest that I am permitted to shoot an attacker with a 12-gauge but not permitted to stop him with a baseball bat or fist to the jaw.
7.15.2008 9:27pm
GaryC (mail):

DangerMouse:

I'd like to hear of a scenario where a person DOESN'T have the right of self-defense.


There is some variation with the culture, but one defining characteristic of a slave is someone who is not allowed to defend himself.

In many cultures, manumission included being given a weapon as a signal that the freed slave was now allowed to defend himself against attacks by others.

In that regard, the constitutional right to self-defense can be based not only on the 9th Amendment but also on the 13th.
7.15.2008 9:51pm
whit:

I have the right, for example, to refrain from drawing a picture that would incriminate me, or carrying out a pantomime that would incriminate me. What we're looking for is an example where one would retain the initial right X (eg., remain silent) but not the purpose Y (eg., avoid self-incrimination.) I'm tring, but I just can't think of an example. Can anyone help out?


the 5th amendment right though only applies to TESTIMONY

you don't have the right, for example, not to provide a blood sample upon arrest for being a collision causing serious injury. that blood sample will be taken by force per RCW (I am speaking my state law). That doesn't violate the 5th.

You don't have the right NOT to participate in a handwriting exemplar given proper probable cause, etc. or to provide your fingerprints upon mere arrest.

So, in a sense you don't have a GENERAL right not to incriminate yourself. That right is limited to testimonial evidence

Also, in WA state (but not HI where I used to work) your refusal to submit to a breathalyzer after arrest for dui CAN be used against you.
7.15.2008 10:15pm
Yankee_Mark:
DangerMouse: One of the favorite topics of Radley Balko touches upon such instances sad to say ... If the police hit your house on a no-knock drug raid (even if they're raiding the wrong house and you are completely innocent) fatally shooting one of the raiding officers is almost certain to lead to you facing murder charges! Self defence be damned even if you're disoriented by surprise and the police did not announce themselves upon crashing through the door...
7.15.2008 10:24pm
EPluribusMoney (mail):
DangerMouse:
I'd like to hear of a scenario where a person DOESN'T have the right of self-defense.


I think in Great Britiain you no longer have the right to fight burglars. Appeasement of criminals is now national policy.
7.15.2008 10:40pm
Elliot123 (mail):
"you don't have the right, for example, not to provide a blood sample upon arrest for being a collision causing serious injury. that blood sample will be taken by force per RCW (I am speaking my state law). That doesn't violate the 5th."

You may take my blood or fingerprints, but you can't take my words. By speaking, I am the actor; when you take the blood, you are the actor. I think there is a difference. Self is acting in one case. Self is not acting in the other.

When I show you the victim's blood on my shoes, I am the actor; when you see it and sample it, you are the actor.

But that prompts a question: Suppose the police want me to speak into a microphone for a voice test analysis. I remain mute. Protected? Different from a blood test? If so, why?
7.15.2008 11:19pm
whit:

You may take my blood or fingerprints, but you can't take my words. By speaking, I am the actor; when you take the blood, you are the actor. I think there is a difference. Self is acting in one case. Self is not acting in the other.


i agree. that's the point.

but if the police demand you remove your shoes so they can inspect them (and they have sufficient cause) you can't refuse.


But that prompts a question: Suppose the police want me to speak into a microphone for a voice test analysis. I remain mute. Protected? Different from a blood test? If so, why?



no. voice samples are not "testimony" and thus you are not protected. it's not the MEANS (voice), it's the substance. you can't be forced to TESTIFY against yourself - that includes WRITING a statement.

but you can be forced to provide PHYSICAL evidence - fingerprints, DNA, and yes - a voice sample.
7.15.2008 11:25pm
John Pate (www):
This article has some relevance:

'Have-a-go heroes' get legal right to defend themselves Daily Telegraph (UK)
7.16.2008 7:06am
wfjag:
ohwilleke:

Thank you for the reply. However, I don't think see the difference in the analysis by analogy between Republican government guarantee/right of franchise and individual right to bear arms/right of self-defense that you assert. Still, that's likely a result inherent in any analysis by analogy.

You also wrote:


One interesting line of cases that a constitutional right to self-defense might address is the right of innocent people to self-defense from law enforcement in cases of mistaken searches and seizure, a limitation on the right to self-defense one might imagine a state enacting, which some (but not all) state courts have been surprisingly tenatious in protecting on a common law basis.


It raises very interesting questions. I hope and you and others will expand the discussion. There are a lot of factors to consider. At a basic level, assuming that the state provides a civil damages remedy, can that be used to justify limiting the right of a self-defense when one night a bunch of people brake down the door and the occupant decides to shoot first instead of relying on the representation "This is the police"? What if criminals have impersonated the police, as recently happened in AZ?
7.16.2008 11:13am
mischief (mail):

I'd like to hear of a scenario where a person DOESN'T have the right of self-defense.


while you're attacking someone else?

Read a rather repugnant article once, complaining that if you commit murder in the course of a felony, the law doesn't take into account whether the victim was resisting the criminal.
7.16.2008 12:25pm
Kirk:
Mike&,

Your example confuses the agent with the tool. Clearly, in the first instance:
[that] you have a right to use a firearm for self-defense does not mean that you have a right to self-defense
you are the agent in both cases, whereas in
because a surgeon has the right to cut you does not mean that there is a general right to cut people.
in the first part the surgeon is the agent, in the latter it's anyone and everyone? A true parallel might state
because a surgeon has the right to cut you with a scalpel does not mean that there is a general right of surgeons to cut people
Truly I am missing the logic here...
7.16.2008 12:42pm
J. F. Thomas (mail):
I think in Great Britiain you no longer have the right to fight burglars. Appeasement of criminals is now national policy.

As much as it may shock the conscience of the libertarians, in most of the western world, especially in Civil Law countries, and certainly in Asia, the right to use deadly force, even in defense of your own life, by civilians is severely limited.

Most countries see the limitation of the use of deadly force to the authorities as a demonstration of a functioning civil society, not the opposite.
7.16.2008 1:17pm
Visitor Again:
I'd like to hear of a scenario where a person DOESN'T have the right of self-defense.

The only scenario in which a person doesn't have the right of self-defense is where that person isn't acting in self-defense.

The proposition that there is no right of self-defense is absurd because it contravenes a law of nature, because it collides head on with reality. It makes as much sense as a declaration that there is no right to live or no right to breathe. Those rights aren't mentioned in the Bill of Rights, either.

As a statement of law, the proposition that there is no right of self-defense would be unenforceable in the sense that it would not achieve compliance by anyone. No matter what the state says, once it becomes necessary, nearly all reasonable persons will defend themselves by any means at their disposal. And nearly all but abject cowards will defend their loved ones. The only exceptions are those who are mentally or physically unable to defend themselves or those take their pacifist beliefs to the extreme--and they would abjure self-defense whether or not there is a right of self-defense.
7.16.2008 3:54pm
Kirk:
Shorter J.F.: Most of the rest of the world is more statist than the US.

Shorter me: I'm happy to be living somewhere that I'm not expected to gladly give my life to criminals as my due to The Collective.
7.16.2008 5:19pm
ohwilleke:
Notably, Great Britain has also never had a necessity defense. The fact that you, for example, had to kill and eat a fellow passanger to stay alive on a stranded lifeboat is not a defense to prosecuting you for murder for that act, although it may be considered in mitigation at your sentencing for that crime.

U.S. law right now isn't that different. A felon with a firearm who uses that firearm in self-defense is probably still guilty of being a felon with a firearm, despite having a defense to the charge of murder.
7.16.2008 10:53pm
John Pate (www):
"Criminal Justice and Immigration Act 2008 (c. 4)" makes specific reference to self-defence, see here: http://tinyurl.com/6qbpnn. I expect this relates to England and Wales and may not affect Scotland and Northern Ireland. People who should know tell me this is, in effect, a restatement of existing law.
7.18.2008 8:08am