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A Constitutional Right to Self-Defense?

Orin's and David Kopel's posts below discuss whether Heller recognized a constitutional right to self-defense. I'm inclined to say the answer is yes, for the following reasons:

1. Heller recognized a right to keep and bear arms in self-defense, which logically presupposes some legal right to self-defense. Why would the Constitution let you keep an object for a certain purpose, when all use of the object for that purpose could be outlawed?

2. Heller often talks of a "right to self-defense" in contexts that suggest it is of constitutional statute, e.g., "That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen's right to self-defense is strong evidence that that is how the founding generation conceived of the right."

3. I suppose that a right to keep and bear arms in self-defense could coexist with a regime that allowed people only a right to self-defense using arms, and that banned unarmed self-defense, or self-defense with weapons that might not qualify as "arms" for Second Amendment purposes. But that wouldn't make a lot of sense: Why would you have a right to defend yourself — lethally, if necessary — using the most lethal weapons, and not using less lethal means? Sometimes the legal answer to some questions is "because that's the way we've always done things, even if you think that's illogical," but that answer can't work here, because tradition is on the side of a right to self-defense using whatever means come to hand.

4. But can an opinion by Justice Scalia, no fan of unenumerated rights, be read as recognizing such a right? Well, it does seem to read that way on its face; and beyond that, Justice Scalia has signalled an openness both to unenumerated rights when they have been broadly recognized for hundreds of years, and to this right in particular. See Montana v. Egelhoff, 518 U.S. 37, 56 (1996) (four-Justice plurality authored by Justice Scalia) (suggesting that "the right to have a jury consider self-defense evidence" may be "fundamental" and supported by the "historical record"; such a right would make little sense if self-defense could be abolished as a defense).

5. At least some lower court judges — including some Reagan and Bush appointees — have shown a willingness to recognize a constitutional right to self-defense, even before the Second Amendment was recognized an individual right. Compare, e.g., Rowe v. DeBruyn, 17 F.3d 1047, 1054-56 (7th Cir. 1994) (Ripple, J., dissenting); id. at 1047 n.** (Cudahy, Flaum, Ripple, and Rovner, JJ., supporting rehearing en banc); DeCamp v. N.J. Dep't of Corr., 902 A.2d 357, 361--62 (N.J. Super. Ct. App. Div. 2006) (endorsing Judge Ripple's position and concluding that prisoners have self-defense rights, though without explicitly deciding whether those are federal constitutional rights or only state law rights); Isaac v. Engle, 646 F.2d 1129 (6th Cir. 1980) (en banc) (Merritt, J., dissenting), rev'd on other grounds, 456 U.S. 107 (1982) with Rowe, 17 F.3d at 1052-53 (7th Cir. 1994) (rejecting a constitutional right to self-defense generally, though the case involved only prisoner rights).

6. Likewise, at least two state courts have expressly read a state constitutional right to bear arms in self-defense provision as supporting a right to self-defense, at least with those arms (though for the reasons mentioned in item 2, I don't see how the right would be so limited. See McKellar v. Mason, 159 So. 2d 700, 702 (La. Ct. App. 1964); State ex rel. City of Princeton v. Buckner, 377 S.E.2d 139, 142--44 (W. Va. 1988).

7. If one counts all the states that have a right to bear arms for individual self-defense in the state constitution together with all the states that have a right to defend life expressly mentioned in the state constitution (and many state courts have indeed read such rights to defend life and property as securing constitutionally protected rights), one gets 44 of the 50 states — an important marker of the breadth of self-defense as a constitutionally secured right, and not just a common-law right. See generally Volokh, State Constitutional Rights of Self-Defense and Defense of Property, 11 Tex. Rev. of L. & Pol. 399 (2007).

None of these, standing alone, would be dispositive evidence that the courts are likely to recognize a constitutional right to self-defense in the wake of Heller. But put together, it seems to me they point strongly in that direction.

I should note, though, that this surely doesn't mean a constitutional right to use deadly force in all circumstances in which one is defending oneself. Historical limitations on this right — either broadly accepted, or at least accepted by a substantial minority of states — are likely to be upheld, especially if history and tradition is a large part of the basis for recognizing the right in the first place.

Thus, a rule that one can only use deadly force to defend oneself against threats of death, serious bodily injury, rape, kidnapping, and a few other very serious threats would likely be constitutional (even though many states also allow use of deadly force to defend against robbery and in some situations burglary). Likewise, the "duty to retreat," which is to say the principle that deadly force can only be used in self-defense if it's genuinely necessary, in that no safe avenue of retreat is available, is likely to be constitutional, too, because it has long been recognized in at least a substantial minority of states. There may be other examples as well. My point is that a federal constitutional right to self-defense likely exists, especially in the wake of Heller; but it is not unlimited, and is likely to be strongest precisely where there's a broad and deep common-law and statutory tradition of recognizing such a right.

Kazinski:
It seems Scalia was alluding to a constitutional right to self defense, unenumerated but there nonetheless. Conservatives and originalists, Bork notwithstanding, shouldn't have a problem with non-enumerated rights as long as there is a common law history of their existence.

Another example is the Constitutional right to travel.
7.15.2008 10:16pm
grackle (mail):
What is great about ponies? Of course, everyone should have them. And of course you can play cowboys.
7.15.2008 10:17pm
irksome1:
I wonder, since Scalia made explicit the constitutionality of certain restrictions being placed on the right to bear arms, as in the case of felons, might this imply that there exist some classes of individuals for whom a presumptive right to self-defense does not exist in any meaningful sense?
7.15.2008 10:34pm
Eli Rabett (www):
You are not talking about a constitutional right to self defense, you are talking about a constitutional right to arm yourself so that you might be able to defend against some threat you imagine. There is a difference.
7.15.2008 10:38pm
OrinKerr:
Conservatives and originalists, Bork notwithstanding, shouldn't have a problem with non-enumerated rights as long as there is a common law history of their existence.

There is a common law history to thousands of different doctrines, of course. Can you explain which of the thousands of common law doctrines are protected as unenumerated rights by the Constitution?
7.15.2008 10:48pm
Cornellian (mail):
There is a common law history to thousands of different doctrines, of course. Can you explain which of the thousands of common law doctrines are protected as unenumerated rights by the Constitution?

It would be awesome if they would Constitutionalize the Rule Against Perpetuities - that's been around forever.
7.15.2008 11:01pm
Originalism Is Useful (mail):

Can you explain which of the thousands of common law doctrines are protected as unenumerated rights by the Constitution?



Any that are a part of the Constitution-in-Exile.
7.15.2008 11:06pm
30yearProf:
There is a common law history to thousands of different doctrines, of course. Can you explain which of the thousands of common law doctrines are protected as unenumerated rights by the Constitution?


Yes, those that are fundamental to the American idea of freedom.

The RKBA has 75% approval because it IS fundamental to ordinary American's idea of freedom.

There are hundreds of CL rules in contract law. Other than the basic principle that seriously-made promises should be kept, none are fundamental in this sense. That is because, contracts are transactional (i.e. planned), it is more important to have a workable rule that you can follow as a default or avoid by planning than it is to have the "perfect" rule. I suspect the same is true in all areas of transactional law. E. g., most modern corporation statutes beg the parties to write their own ticket.
7.15.2008 11:15pm
Kazinski:
Orin:

Can you explain which of the thousands of common law doctrines are protected as unenumerated rights by the Constitution?

Of course not. Which by the way is the reason the founding fathers didn't try either. But fools rush in where angels fear to tread, so here is my partial list:


Right to take a nap on Saturday afternoon.
Right to lie to my wife about where I was Friday night.
Right to spank my kids.
Right to brew beer.
Right to travel.
Right to hunt.
Right to ...



Now I see why they didn't try to write them down, because of course many of the things I would just assume are my rights may not be even mentioned in common law doctrine, who could possibly question my right to brew beer, why would it even come up?
7.15.2008 11:21pm
krs:
"Yes, those that are fundamental to the American idea of freedom."

Wow. If there was ever a principle incapable of being applied with any coherence or objectivity, there it is.
7.15.2008 11:22pm
HLSbertarian (mail):
Prof. Volokh,

As to point 1: Pre-incorporation, the opposite reading of the Second Amendment might make perfect sense too. States would be the ones deciding the scope of the right to self-defense while Congress would be forbidden to abridge the right to keep and bear arms. A Congress regulating guns would be far more foreseeable to the drafters than a Congress meddling in what was exclusively state criminal law.

Incorporation screws up this structure. If the goal is to have the states respect these rights to the same extent that Congress must, reading a Right of Self-Defense into the amendment become necessary because states DO also control the criminal law of self-defense.

Of course, now that Congress is administrating criminal statutes of its own it becomes necessary to give it the same reading even against Congress.
7.15.2008 11:42pm
OrinKerr:
kazinski,

I almost forgot: It is a Constitution you are expounding!
7.15.2008 11:46pm
Mark Buehner (mail):
The Founders would find it lunatic that as hard as we fight over their written words, we would even be having this discussion. There is a real Cult Cargo mentality in place here. Essentially, nothing else we understand in Constitutional Law makes any sense at all if a right to Life, Liberty, and Property aren't paramount. And Life is presupposed by the other two. Of course we have a fundamental right to self defense. Its lunatic to even have to parse that fact.
7.15.2008 11:48pm
OrinKerr:
who could possibly question my right to brew beer, why would it even come up?

Actually, I believe homebrewing was illegal under federal law until 1978, and is still illegal in some states. But of course every day is a new day under the Due Process clause. ;-)
7.15.2008 11:50pm
TruePath (mail) (www):
Ahh, yet more proof that the constant criticism of liberal judges as somehow perverting the process by inserting their own judgement into constitutional questions is hypocritical. This doesn't mean I disagree with the idea that the constitution protects a right to self-defense, certainly once you've admitted it protects gun ownership for self-defense as well as to preserve the ability to revolt this seems a reasonable conclusion. However, this conclusion requires exactly the same judgement calls (unavoidably biased by your political view) that liberals are so often attacked for making.

I mean as a matter of logic it's not absurd to guarantee a right to own weapons for self-defense while allowing the government to make any such use illicit. One might well think that anytime someone deliberately takes a life they should face serious legal jeopardy thereby ensuring that they only use deadly force as a matter of last resort. Thus it's perfectly coherent to outlaw all uses of guns for self-defense and rely soley on prosecutorial discretion and jury nullification to decide if someone can escape jail once they've used deadly force in self-defense. Hell, so long as you don't impose the death penalty for using a weapon in self-defense someone who thought early death was much much worse than prison and felt that without the deterrent of prison people would be too trigger happy could easily favor both giving people the right to own guns in self-defense while thinking anyone who uses them in such a manner should be jailed.

Do I think these are good arguments? No! But there is no constitutional text that will tell me that not to reject the actual right to self-defense. Rather, it's only because we intuit that the framers took the idea that you could actually defend yourself for granted. Yet these are the same arguments that liberal justices are always being attacked for making, e.g., the 5th ammendment has an underlieing assumption of personal control and autonomy that extends out from one's body to more tenuously protect those objects we merely own.
7.15.2008 11:51pm
Nathan_M (mail):

There are hundreds of CL rules in contract law. Other than the basic principle that seriously-made promises should be kept, none are fundamental in this sense.

So there's a constitutional right to have seriously-made promises enforced? Unless there was no consideration. Or the promise was against public policy. Or the promisor was a minor. Or there was no intention to create a legal relationship. Or the promisor lacked capacity. Or the promise was frustrated. Or the promise was unconscionable. Or the offer the promise was made in response to was withdraw before the promisee learned of the promise (unless, of course, the promisor sent the promise by mail).

Don't get me wrong. As a matter of policy I think it makes sense for there to be a constitutional right to self-defence. But the idea that fundamental common law rules should be protected by the constitution seems like a mess.
7.15.2008 11:54pm
OrinKerr:
Mark Buehner,

If it's so obvious, why is it that no one has recognized the right before? Indeed, why is it that (as far as I know) no one litigated the issue in court in the last 220 years despite hundreds of thousands if not millions of opportunities?

You might find the right very desirable, but that has an uncertain relationship to whether the constitution protects it.
7.15.2008 11:56pm
Kazinski:
Orin,
Yes it is a constitution, and I have to agree with you that the ninth amendment does not enshrine unenumerated constitutional rights it merely

shall not be construed to deny or disparage others retained by the people.

Which unfortunately would make them as inalienable as English Constitutional rights.

However it is not a long stretch to interpret the ninth and tenth amendments as putting these "other rights retained by the people" as outside the reach of Congress. And wouldn't that make them Constitutional rights, whether enumerated or not? That is my position and I'm sticking to it.
7.16.2008 12:28am
Eugene Volokh (www):
Orin: Whether there is indeed a constitutional right to self-defense has indeed been litigated. The question as to whether there's a constitutional right to use force (other than lethal force against humans) in defense of property has been litigated, and such a right has been found under some state constitutions (though rejected in a few cases under the federal constitution, at least where endangered species law is involved). I cite cases on both subjects in the Texas Review of Law &Politics piece.

But indeed litigation about a constitutional right to self-defense is rare -- because, I think, all American jurisdictions recognize such a right as a matter of common law or statute.
7.16.2008 12:30am
Perseus (mail):
Essentially, nothing else we understand in Constitutional Law makes any sense at all if a right to Life, Liberty, and Property aren't paramount. And Life is presupposed by the other two. Of course we have a fundamental right to self defense.

Exactly. The right to self-defense is a natural right, and it because of that right that governments may be dissolved: "that original right of self-defense which is paramount to all positive forms of government" (Fed. 28). No government may entirely disregard the right of self-defense, though it could place restrictions such as the ones Prof. Volokh mentioned in the exercise of the right.
7.16.2008 12:34am
OrinKerr:
Eugene writes:
Whether there is indeed a constitutional right to self-defense has indeed been litigated. The question as to whether there's a constitutional right to use force (other than lethal force against humans) in defense of property has been litigated, and such a right has been found under some state constitutions (though rejected in a few cases under the federal constitution, at least where endangered species law is involved). I cite cases on both subjects in the Texas Review of Law &Politics piece.

But indeed litigation about a constitutional right to self-defense is rare -- because, I think, all American jurisdictions recognize such a right as a matter of common law or statute.
I'll check out your citations, Eugene: I have never heard of these cases, and I have taught self-defense for years. Your argument that jurisdictions recognize the right is straightforward, but I'm not sure that quite answers why the argument hasn't been made: If a constitutional right exists, a defense attorney who doesn't want to commit malpractice will argue the shape of the right, not its existence; I would think we would still see a lot of cases on the issue.
7.16.2008 12:48am
OrinKerr:
Kazinski,

Remember, the Constitution is whatever you want it to be. That is what we conservatives have been arguing for years!!! (Or wait a second --- maybe that's what we have been arguing against for years? Oh, I can't remember these details.)
7.16.2008 12:51am
Kevin P. (mail):
This discussion reminds me of the Self Defense Cases but in reading about them again, it appears that they did not address whether there was a constitutional right to self defense.
7.16.2008 1:05am
Kazinski:
Orin,
Maybe the key to resolving the riddle of a written constitution and unenumerated rights is restricting the Federal Government narrowly to the enumerated powers. That however seems outside the mainstream of conservative and liberal thought, whether or not it was the founding father's intent.

The British system of leaving everything open to Parliamentary fiat seems like no protection at all, especially for the unenumerated rights.
7.16.2008 1:20am
arbitraryaardvark (mail) (www):
I think Orin has the better of the argument that Heller does not have a holding recognizing a general right of self-defense as being part of the second amendment, one that would apply, for example, to EV's hypos about organ transactions or experimental medical procedures.
Heller supports finding such a right, in the penumbras and emanations of the 2nd 9th 5th 14th 13th, if some future case raises the issue, but that's the kind of thing Scalia tends to claim he's not for. Scalia's not always internally consistent about his process, and for him I think it matters that such a right has a long common law basis and isn't just a recent fad.
A lawsuit that says "self-defense is in the second amendment so i win, nyah" will lose. One that cites common law, organic law, state constitution, and cases like Heller to build an argument that such a right is an aspect of substantive due process, has a pretty good shot, if the equities are compelling.
7.16.2008 2:04am
zooba:
Heller has to imply some right of self-defense because otherwise it would not have struck down the trigger-lock law / inoperable firearm law for the lack of a self-defense exception. That goes beyond the right to possess firearms for the purposes of self-defense to an actual self-defense right. Now that doesn't mean Heller guarantees a right to use experimental life-saving drugs or other extended self-defense rights, but it does have obviously some constitutional holding regarding self-defense. I think it at least means that self-defense cannot be banned altogether.
7.16.2008 5:12am
Duffy Pratt (mail):
Of course, another aspect of Heller is that the Second Amendment preserves the ability of the people to rebel against an oppressive and tyrannical government. By this reasoning, there must also be a constitutional right to rebellion?
7.16.2008 5:20am
TDPerkins (mail):

Maybe the key to resolving the riddle of a written constitution and unenumerated rights is restricting the Federal Government narrowly to the enumerated powers.


Ding! Ding! Ding! Ding! Ding!

I suppose from his other posts OrinKerr would come up with some claim that that isn't conservative...


By this reasoning, there must also be a constitutional right to rebellion?


There is a right to the means of rebellion. That's not at all the same thing as what I suspect you are implying, i.e., there is no right to have people in government who oppose your actions desist from attempting to enforce the law.

And really, shouldn't we try a constitutional convention first?

Yours, TDP, ml, msl, &pfppp
7.16.2008 6:24am
Joshua:
However it is not a long stretch to interpret the ninth and tenth amendments as putting these "other rights retained by the people" as outside the reach of Congress. And wouldn't that make them Constitutional rights, whether enumerated or not? That is my position and I'm sticking to it.

To put on my devil's advocate hat one more time, this brings up the elephant in the room: What to do when your unenumerated rights (specifically, to lethal self-defense) conflict with someone else's enumerated rights (specifically, a criminal suspect's right to due process before being deprived of one's life*)?

* I'm not suggesting individuals be held responsible for constitutional violations. But if the state sanctions lethal self-defense, it seems to me that it bears some degree of responsibility for the bottom-line result, namely that some criminal suspects are killed outside the legal process for their crimes. And from the suspect's POV, it makes no difference at all whether said killing is done by the state or by someone acting with the state's blessing, or even whether the intent of said killing is punishment or protection - the bottom line is, they're still dead without a trial, and their enumerated Fifth Amendment rights thereby still deprived.
7.16.2008 9:03am
DiverDan (mail):
If one assumes a rational, civic minded jury, then assuming a right to self defense as a criminal defense might well be unnecessary, as long as the 6th Amendment right to trial by jury is properly respected. Remember that at common law, dating back to the Magna Carta, one of the functions of a trial by a jury of one's peers was to protect the accused from a tyrranical sovereign. Thus, the jury had the inherent right of nullifying any criminal law which it viewed as oppressive, either in general or as applied. Thus, even if we assume that a State could pass a statute which barred the use of self-defense as a defense against a criminal indictment, as long as a jury viewed the particular crime charged as justified, by self-defense or otherwise, it was free to acquit the accused despite the fact that his actions fell within the definition of the crime charged. That, however, assumes that the accused is permitted to present evidence of his self-defense justification to the jury, which raises another problem; if the law prohibits presenting such evidence, does it violate the 6th Amendment by curtailing one of the historical functions of a jury? Or does it violate the 1st Amendment by unreasonably restricting the accused's right to "petition the government for redress of grievances", as the jury in a criminal trial is certainly an arm of the government for purposes of criminal law?

I might argue (I've only given this a moment's thought, so permit me the right to change my mind later) that an implied constitutional right to self-defense, at least insofar as it applies to the criminal law, is unnecessary if, but only if: (1) the 6th Amendment right to trial by jury is held to include the right of jury nullification; and (2) the 1st Amendment right to petition the government includes a right of the criminally accused to present to the jury all evidence concerning the circumstances of the crime (or at the least all circumstances which might support jury nullification), regardless of the Court's view of legal relevance.
7.16.2008 9:17am
Brett Bellmore:

What to do when your unenumerated rights (specifically, to lethal self-defense) conflict with someone else's enumerated rights (specifically, a criminal suspect's right to due process before being deprived of one's life*)?


Due process is a right against agents of the state, acting in their capacity as agents of the state. It isn't a right against other people in their capacity as individuals.

But, arguably, if you've put yourself in a position where somebody else's right to lethal self defense applies to you, getting summarily blown away IS the "process" you're "due", by your own choice.
7.16.2008 9:37am
ClosetLibertarian (mail):
Please ignore if already posted but here are two interesting takes on this issue:

Lund http://papers.ssrn.com/sol3/papers.cfm?abstract_id=912277

Cramer http://www.claytoncramer.com/DefendingSelfDefense.html
7.16.2008 10:04am
Thales (mail) (www):
"Heller often talks of a "right to self-defense" in contexts that suggest it is of constitutional statute"

Surely you mean constitutional *stature*.
7.16.2008 10:28am
A.W. (mail):
I think the main post has it backwards. It is not for the people to prove they have a right to self-defense, but for the state to prove they have the power to take it away.

And to some extent they do. There is no right to self-defense when the government comes to put you in jail to be tried in jeapordy of your life. There is no right to kill the jury to prevent them from passing down a decision to execute you. And there is no right to shoot an executioner before he or she carries out a lawful sentence.

But in the absense of the lawful authority to prevent you from defending your life, you have a right to defend your life.
7.16.2008 10:52am
frankcross (mail):
I'm reasonably happy with the idea of recognizing such rights, but Orin's point is sound. Once you do that, you empower the judiciary to be very activist. You can't truly criticize the privacy decisions or similar outcomes, because the judiciary, once give greater freedom to recognize rights, will recognize those it likes on ideological type bases.

And if you hinge those to common law . . . well, the common law is continually evolving and changing, so you are talking living constitution.
7.16.2008 10:56am
J. F. Thomas (mail):
Whether there is indeed a constitutional right to self-defense has indeed been litigated. The question as to whether there's a constitutional right to use force (other than lethal force against humans) in defense of property has been litigated, and such a right has been found under some state constitutions

Now Eugene, certainly you understand the difference between the Federal and state constitutions. And using Texas to prove your point is particularly dishonest. Texas has always been partial to vigilante and frontier justice. Heck, "he deserved killin" was a valid defense until recently (and I bet is still a good enough reason for acquittal in some jurisdictions in Texas).
7.16.2008 10:57am
Brett Bellmore:
A.W., I think it would be best characterized this way: You have a right to lethal self defense to prevent yourself from being wrongly killed or seriously injured. In addition to those examples you gave, a mugger can not claim a right to self defense against his victim. Not because the victim has "lawful authority", but because the victim would not be acting wrongfully in responding violently to a mugging.
7.16.2008 11:03am
CDR D (mail):
In US v. Steven Paul Gomez, 92 F 3rd 770 (9th Cir. 1996), a felon in possession case, Judge Kozinski wrote in a fn:

"7 Indeed, 18 U.S.C. § 922(g)(1) might not pass constitutional muster were it not subject to a justification defense. The Second Amendment embodies the right to defend oneself and one's home against physical attack. Nelson Lund, The Second Amendment, Political Liberty, and the Right to Self-Preservation, 39 Ala. L. Rev. 103, 117-120, 130 (1987) (Second Amendment guarantees right to means of self-defense); see Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637, 645-46 (1989) ("It seems tendentious to reject out of hand the argument that one purpose of the [Second] Amendment was to recognize an individual's right to engage in armed self-defense against criminal conduct."). In modern society, the right to armed self-defense has become attenuated as we rely almost exclusively on organized societal responses, such as the police, to protect us from harm. See Levinson, 99 Yale L.J. at 656 ("One can argue that the rise of a professional police force to enforce the law has made irrelevant, and perhaps even counterproductive, the continuation of a strong notion of self-help as the remedy for crime."). The possession of firearms may therefore be regulated, even prohibited, because we are "compensated" for the loss of that right by the availability of organized societal protection. The tradeoff becomes more dubious, however, when a citizen makes a particularized showing that the organs of government charged with providing that protection are unwilling or unable to do so. See Lund, 39 Ala. L. Rev. at 123 ("The fundamental right to self-preservation, together with the basic postulate of liberal theory that citizens only surrender their natural rights to the extent that they are recompensed with more effective political rights, requires that every gun control law be justified in terms of the law's contribution to the personal security of the entire citizenry."). At that point, the Second Amendment might trump a statute prohibiting the ownership and possession of weapons that would be perfectly constitutional under ordinary circumstances. Allowing for a meaningful justification defense ensures that 18 U.S.C. § 922(g)(1) does not collide with the Second Amendment."

The other two panelists concurred in the opinion except for this footnote.

Judge Hall said the fn conflicts with circuit precedence in *Hickman*, which said the 2A is a right of states.

Judge Hawkins punted, saying it's an interesting question better left for another day.
7.16.2008 11:31am
Kirk:
Mr. Chemerinsky argues that no constitutional principle prevents the federal government from regulating any matter.
What the h*ll did those folks waste their time in Philadelpha doing, then?

DiverDan,

Your formulation is OK, but it neglects the disastrous economic impact of putting someone on trial in the first place. We do want to limit the ability of the government to destroy people w/o actually convicting them, don't we? Consider the fate at trial of some unpopular jerk who was involved in a legitimate instance of self-defense, compared to everybody's favorite grandma in the same setting.
7.16.2008 12:23pm
wuzzagrunt (mail):

Joshua:

To put on my devil's advocate hat one more time, this brings up the elephant in the room: What to do when your unenumerated rights (specifically, to lethal self-defense) conflict with someone else's enumerated rights (specifically, a criminal suspect's right to due process before being deprived of one's life*)?

* I'm not suggesting individuals be held responsible for constitutional violations. But if the state sanctions lethal self-defense, it seems to me that it bears some degree of responsibility for the bottom-line result, namely that some criminal suspects are killed outside the legal process for their crimes. And from the suspect's POV, it makes no difference at all whether said killing is done by the state or by someone acting with the state's blessing, or even whether the intent of said killing is punishment or protection - the bottom line is, they're still dead without a trial, and their enumerated Fifth Amendment rights thereby still deprived.


If taken that far, the right to due process nullifies the police powers of the state. Is it not a deprivation of life without due process when police use lethal force against a criminal who is caught in the act of murdering another citizen? Can the US Secret Service go any further than presenting themselves as human shields, in defense of the POTUS's life?

Why haven't these questions been litigated?
[I think I know the answer.]
7.16.2008 12:44pm
Bystander:

Joshua:
I'm not suggesting individuals be held responsible for constitutional violations. But if the state sanctions lethal self-defense, it seems to me that it bears some degree of responsibility for the bottom-line result, namely that some criminal suspects are killed outside the legal process for their crimes. And from the suspect's POV, it makes no difference at all whether said killing is done by the state or by someone acting with the state's blessing, or even whether the intent of said killing is punishment or protection - the bottom line is, they're still dead without a trial, and their enumerated Fifth Amendment rights thereby still deprived.

Also mentioned in this post is the conflict between enumerated and unenumerated rights of victim/aggressor. I am starting to get seriously confused (and maybe a little disappointed) by these legal contortions of a "right" of self-defense. I certainly understand the intellectual resons for the discussion in terms of logic and law as it currently exists. But really, no one actually believes that self-defense is illegal (or more specifically is a "right" that has to be enumerated or found due to its unenumeration)...do they?

Joshua contends there is a problem or conflict between two sets of rights, and that the hypo criminal is denied his right to due process (namely trial) if he's kilt ded "killed outside the legal process.." before a trial. This seems to be no question at all. Trials are by definition to ascertain guilt and/or innocence, then to define punishment. Brett Bellmore said it best:

But, arguably, if you've put yourself in a position where somebody else's right to lethal self defense applies to you, getting summarily blown away IS the "process" you're "due", by your own choice.

My reading seems to find something a little backwards in that everything discussed here regarding both big- and little-c constitutions/constitutional rights is something that is given or available to the individual. Back to Brett:

Due process is a right against agents of the state, acting in their capacity as agents of the state. It isn't a right against other people in their capacity as individuals.

All these "rights" within the BoR are really restrictions on the gov't.

Whatever the use of something (namely arms), 2A says you get to have them. If you use an "arm" to tenderize your burgers or if you use it to defend yourself against an aggressor, what difference does it make what the Constitution says about an alleged "right" to self-defense (or a "right" to pound that t-bone until ready for the grill)? What difference does it matter about what it says regarding a "right" to due process? These are restrictions on the state, not a list of things that tell someone what they can or can't do. Courts are there to determine (after the fact) if an action was illegal and deserves punishment.

Again (and as others have mentioned), does anyone really believe an individual can't protect themselves? Or that in a court of law, for there to be a valid defense for someone who is on trial for protecting themselves that some "right" to self-defense must be either enumerated, or dug out because of its unenumeration?

Hence the reason for my disappointment. Debating this seems to be total lunacy.
7.16.2008 12:55pm
Kirk:
Oops, the Chemerinsky bit was obviously meant for the other thread; sorry.
7.16.2008 12:55pm
zippypinhead:
Duffy Pratt wrote:
Of course, another aspect of Heller is that the Second Amendment preserves the ability of the people to rebel against an oppressive and tyrannical government. By this reasoning, there must also be a constitutional right to rebellion?
Dicta in various Revolutionary-era tracts aside, I believe that issue was conclusively litigated to judgment, circa 1861-65?

But seriously, you just expressed the fallacy various fringe anti-government "militia" groups tend to parrot. If we assume the collective rights theory continues to exist in parallel with the individual rights theory after Heller, it does NOT support a general right to rebellion. One can argue this aspect of the Second Amendment merely implies or recognizes a right of the states to authorize/sponsor/mobilize a "well-regulated militia" outside the control of the Federal government for collective defense. That militia may constitute the entire able-bodied populance, but it is ultimately subject to state control. Nothing in the Second Amendment supports by implication a general right of rebellion -- Timothy McVeigh's fellow travelers get no right to blow up Federal buildings because they think the government is oppressive, tyrannical, illegitimate, or acting ultra vires for subsidizing daycare centers in public facilities. The Revolution in the forefront of the Framers' thoughts was authorized by formal legislative decision of each of the participating colonies/states (yes, the same argument was made regarding southern states' right to formal secession and collective self-defense in the face of "northern aggression," but the cynic might note that the Confederacy, while having better generals, must have had a shortage of good Constitutional appellate litigators?).

But slightly more back on topic - I think one could argue that the right to collective/organized self-defense is equally a natural right with the right to individual self-defense. Support for the proposition is all over founding-era literature, and goes back at least as far as the Old Testament.
7.16.2008 1:08pm
DiverDan (mail):
Kirk said:


Your formulation is OK, but it neglects the disastrous economic impact of putting someone on trial in the first place.


I don't disagree, but since self-defense has always been an affirmative defense to criminal charges, even recognizing the Constitutional right to self-defense does not prevent such an impact, since prosecutors are free to put the accused on trial in any event, and leave it to the jury to decide. I will grant you that prosecutors may well be less likely to seek charges against an accused if self-defense is a constitutionally recognized right and the evidence for self-defense appears clearcut. This difference may well evaporate if juries started consistently using jury nullification in cases of self defense. Your point about how juries might treat the unpopular jerk differenly than a kindly old grandmother applies to both cases equally, and a prosecutor might be more likely to seek an indictment against the unpopular defendant just knowing that he is going to get less sympathy from the jury.
7.16.2008 2:04pm
DiverDan (mail):
I can't help but laugh at the conflict over the alleged "right" to rebellion. As a purely practical matter, the respective rights of the parties in any armed conflict are ALWAYS determined after the fact by the winner. Do you suppose any British subject would argue that those ragtag rebels led by George Washington had the legal "right" to rebel against the British Crown? Even the Declaration of Independence, a fine bit of rhetoric, spoke of the necessity of rebellion, before trying to rationalize the right to do so. Yes, the Civil War decided that the South lacked the "right" to rebel, but the decision was ultimately made by the battlefield prowess of Ulysses S. Grant and company and his victory over the troops of Robert E. Lee. Arguing the legal fine point about whether or not there is ever a legal "right" to rebellion, under the Constitution or otherwise, is just ludicrous. The short answer is, and always will be, if you lose your rebellion, you had no right to start it, and if you win your rebellion, the fact that starting it may have been legally wrong becomes irrelevant.
7.16.2008 2:15pm
Joel Rosenberg (mail) (www):
But indeed litigation about a constitutional right to self-defense is rare -- because, I think, all American jurisdictions recognize such a right as a matter of common law or statute.

Well, yeah. Or as a matter of common sense.

Really, can anybody imagine the Founders, to take the obvious example, spending any time engaging in (or, for that matter, tolerating) a discussion of whether or not somebody who decided that their Kentucky Rifle should have a shorter-than-usual barrel should be imprisoned? Or what obligations a home owner should have to see to the medical care of a murderous intruder that he or she had just shot?
7.16.2008 2:19pm
Dan Hamilton:
Of course you have the right to rebellion. It is one of the Natural Rights without question. The Founders knew this. They used it in the Declaration.

What you DON'T have is a RIGHT TO WIN!

And if you lose you can be found guilty of any crimes you commited during your rebellion.

BTW During the War of Nothern Aggression the South was NOT rebelling against the United States, they were seeking to desolve the contract that made them PART OF THE US. It was a contract dispute. The South thought that any party to the contract could leave the partnership when they wanted to. The Federal Government believed that they could do so ONLY BY MUTUAL CONSENT. Since there was no court that the Federal Government could take their case to so that their view could be inforced on the South, they had to settle the matter out of court. That is why they invaded the South. Therefore the valid name of the War of Northern Aggression. Civil War sounds like the South started the fighting.
7.16.2008 5:20pm
wuzzagrunt (mail):
DiverDan:

As a purely practical matter, the respective rights of the parties in any armed conflict are ALWAYS determined after the fact by the winner.

That's the bottom line.

Of course there is a collective right to rebellion, and it flows from the individual's right to self defense. The right to overthrow an oppressive government is one "we the people" will never be allowed to exercise. As long as civic institutions function, the right--by definition--does not apply. At the point that a government becomes so intolerable as to justify the right to rebellion, they've already made the decision to abrogate constitutional rights on a wholesale basis. This would be the first right knocked into the crapper. Call it the Catch 22 of civil liberties.

If you want to make war on the government, you should be damned sure the gripe is worth dying over.
7.16.2008 5:23pm
Cousin Dave (mail):
So Bystander, although I agree with you, we have to look at what is happening in Great Britian right now. British subjects have for eons assumed that they had an unenumerated right to self-defense, based on common law and historical precedent. However, they are now finding out that their government doesn't see it that way: "Ma'am, you pointed a gun at your rapist? Can you cite a law that says it's OK for you to do that? No? Well, come along then. No need to feed the cat first; by the time you get out, he'll be long gone anyway."

Could a state impose a duty to flee in all cases except where one's own life is immediately in danger? I supposed they could, although I think it would be a terrible idea. However, I would argue that prohibiting a gun from ever being used in self-defense would not pass constitutional muster, for a reason that is sorta kinda enumerated, with common sense applied. The enumerated one is the fact that 2A doesn't just say "keep arms", it says "keep and bear arms". I would argue that in common military usage, bringing a gun "to bear" includes all steps immediately prepatory to firing; the intent is that firing may occur immediately afterwards. If actually firing is prohibited in all circumstances, then the right to bear becomes meaningless. One might argue that such meets a pedantic reading of the 2A, but by analogy, I can argue that censorship of blogs meets a pedantic reading of the 1A: a blog is not "speech" in that the form of communication is not verbal, and it is not "the press" in that a printing press is not used."
7.16.2008 5:53pm
Useless S. Granted:
During the War of Nothern Aggression the South was NOT rebelling against the United States, they were seeking to desolve the contract that made them PART OF THE US. It was a contract dispute. The South thought that any party to the contract could leave the partnership when they wanted to. The Federal Government believed that they could do so ONLY BY MUTUAL CONSENT.... That is why they invaded the South. Therefore the valid name of the War of Northern Aggression. Civil War sounds like the South started the fighting.
Huh? Off topic, but this is history of a not-quite-parallel-universe. If the War of Southern Rebellion was indeed a "contract dispute," then the Rebels surely needed better lawyers. The contract itself, the Constitution, in Article V set forth the agreed principles for modifying its terms, including the means of effectuating or clarifying the procedures for dissolution. The Rebels instead engaged in willful breach of contract. At which point the other parties to the contract used self-help remedies to cure the breach.

The War of Southern Rebellion was not an example of "self defense." Nor does the Declaration of Independence state that there is a natural right to rebellion. The preamble says that "whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness." It seems the Framers of the Constitution remembered this concern, and established a procedure to accomplish it in Article V of the Constitution. Don't like it? Change it in the prescribed method. No need to fire on Fort Sumter (um, WHO started the Civil War, again?).

Two closing thoughts:

1. This thread does suggest an interesting question about Montana's reaction if Heller had come out differently, since state officials claimed that non-recognition of an individual RKBA would violate the terms under which that state joined the Union.

2. In the town green in the county seat where I grew up stands a large statue honoring the brave local lads who fell defending the Union in what is described in granite as the "War Of Southern Rebellion." Sounds like a perfectly valid description to me. And yes, that town is VERY north of the Mason-Dixon Line.
7.16.2008 7:18pm
AST (mail):
The Bill of Rights ought to be seen as a list of the rights the original states were most concerned about protecting from government intrusion at the time. I don't think the right of self-defense is one they were worried about losing, but probably one they would have included in those rights referred to in the Ninth Amendment.
7.16.2008 7:51pm
Bystander (mail):
Cousin Dave:

So Bystander, although I agree with you, we have to look at what is happening in Great Britian right now. British subjects have for eons assumed that they had an unenumerated right to self-defense, based on common law and historical precedent. However, they are now finding out that their government doesn't see it that way: "Ma'am, you pointed a gun at your rapist? Can you cite a law that says it's OK for you to do that? No? Well, come along then. No need to feed the cat first; by the time you get out, he'll be long gone anyway."


It sounds like you're amplifying my point, in that it is seems crazy to parse the "right" in 2A to such a point that we're doing the "The definition of is...is..". Great Britain is certainly not a model I'd want the U.S. to emulate, even though much of the common law comes from historical antecedents starting there.

Does Heller take us down the road that GB is currently on? I certainly hope not, but from the sound of some of this discussion...it is possible. That's where I'm a little flabbergasted.
7.16.2008 8:45pm
Michael Edward McNeil (mail) (www):
Dan Hamilton writes:
BTW During the War of Nothern Aggression the South was NOT rebelling against the United States, they were seeking to desolve the contract that made them PART OF THE US. It was a contract dispute. The South thought that any party to the contract could leave the partnership when they wanted to. The Federal Government believed that they could do so ONLY BY MUTUAL CONSENT. Since there was no court that the Federal Government could take their case to so that their view could be inforced on the South, they had to settle the matter out of court. That is why they invaded the South. Therefore the valid name of the War of Northern Aggression. Civil War sounds like the South started the fighting.

As “Useless S. Granted” as already pointed out, but it deserves I think a bit larger emphasis, the South did start the fighting in the Civil War, which very likely would not have broken out otherwise (Lincoln had promised not to be the first to strike a military blow).

Alexis de Tocqueville described the attitudes of the southerners that he encountered during his visit to America: “The American on the left bank [of the Ohio, i.e. the South] scorns not only work itself but also enterprises in which work is necessary to success; living in idle ease, he has the tastes of idle men; money has lost some of its value in his eyes; he is less interested in wealth than in excitement and pleasure and expends in that direction the energy which his neighbor puts to other use; he is passionately fond of hunting and war; he enjoys all the most strenuous forms of bodily exercise; he is accustomed to the use of weapons and from childhood has been ready to risk his life in single combat. Slavery therefore not only prevents the white men from making their fortunes but even diverts them from wishing to do so.”

The South’s attack on Fort Sumter (legal federal property) and its designated agents fully exemplifies, I’d say, the southern slavers’ overweening military arrogance that Tocqueville describes.
7.17.2008 5:27am
Mr. Mandias (mail) (www):
Civil War sounds like the South started the fighting.

Ever heard of Fort Sumter? Anyway, why does the term 'civil war' make it sound like the South started the fighting?

---
In Indianapolis an enormous statue of victory looks down over the South and so it should.
7.17.2008 5:11pm
Andy Freeman (mail):
> If it's so obvious, why is it that no one has recognized the right before?

Is this argument specific to self defense or can we look at other issues?

For example, it's only recently that anyone has argued that there's a constitutional right to gay marriage. Does that imply that there is no such right, does the argument not apply, or is the argument wrong, at least wrt gay marriage? If the latter two, how do we know that the same isn't true of self-defense?
7.18.2008 1:47pm
Wendy Weinbaum (mail):
As a Jewess in the US, I say it is high time that our Congress pass legislation recognizing any NRA membership card as a NATIONAL Concealed Carry permit! Let's take BACK our streets!
7.18.2008 2:57pm
Gary C. (mail):
The bombardment of Fort Sumpter ended the negotiation phase of the "contract dispute" between North and South. The Union was quite correct in declaring war on the wayward states. Was the war against Japan a War of Anglo Aggression?

I think I'll register now.
7.20.2008 12:23pm