State Constitutional Defense of Property Cases:

More from my article, which I introduced below:

The state constitutional defense-of-life/property provisions have most clearly and most often made a difference in cases where a person claimed a right to kill wild animals to "protect[] property." These cases have read the right to "protect[] property" as a judicially enforceable constitutional right that could trump statutes. It follows that the coordinate right to "defend life" -— a right that the common law historically saw as even broader than the right to protect property —- would likewise be seen as an enforceable right.

The longest line of such precedents comes from Pennsylvania, where cases from 1917 to 2000 hold that the constitutional right to protect property entitles landowners and their agents to kill wild animals that are threatening the landowner's crops, and that it is unconstitutional for state game laws barring the killing of wild animals to be applied in such situations. Cases from Iowa, Kentucky, Montana, New Hampshire, and Ohio take the same view. Cases from Alabama, South Carolina, Washington, and Wyoming take this view even though the states do not have express defending life/protecting property provisions.

The common law has generally seen protecting property as an inadequate justification for using force that is deadly to humans; the constitutional right likely doesn't extend beyond this common-law tradition. But when the law tries to interfere with the use of even nonlethal force against humans, the right to protect property may intervene: Consider In re Reilly [a 1919 Ohio case], which held that a ban on hiring security guards during a strike unless the guard "shall first have been empowered to act such special guard by the director of public safety" violated the state constitutional right to "protect[] property."

J. Aldridge:
Does a a rancher have a defense in killing wolves who kill his his sheep (property) even though law forbids killing wolves?
7.16.2008 1:20pm
Jim at FSU (mail):
Not if they follow the MBTA cases. And no, most of the MBTA species are merely migratory, not endangered.

How about deadly force against humans to protect property? I know you can do that in Texas and probably a few other places, but your article doesn't mention it.
7.16.2008 1:28pm
Clayton E. Cramer (mail) (www):
California Const. Art. I, sec. 1 has a guarantee of a right to protect self, family, and property. It would be interesting to see if there's any case law from states with similar provisions (such as Iowa, where California stole much of the 1849 Const.) that turns that into a right to ARMED self-defense.
7.16.2008 1:38pm
JA (mail):
Surely Orin's is the more principled of the two sides in this debate. The Second Amendment itself says nothing about self-defense; rather, it's prefatory clause speaks to the "security of a free State" only. Heller does refer to a natural right to self-defense, but only in support of its holding that the Second Amendment protects an individual right rather than a collective one.

A protected right to self-defense cannot be interpreted from the text of the Constitution; it can only be read into the subtext. That much is inarguable. Further, it can be shown that this latter strategy is a principally unprincipled way of conducting judicial review: the subtext to the Constitution is a nebulous thing; relying on it to find a new right -- one which is clearly not enshrined in the four corners of our founding document -- is inherently problematic, different, not in kind, but only in degree from Douglas's reasoning in Griswold. The subtext of the Constitution -- composed from the historical record -- should only be used to clarify existing words and phrases; to use it to install substantive changes is to expose Constitutional jurisprudence to the subterranean selection biases and temperamental idiosyncrasies of the justices -- in other words, a large and avoidable amount of arbitrariness.

Now, in many ways this ship has already sailed. So many substantive changes have been read into the Constitution that we're really talking about protecting niches of sanity rather than the whole shebang. Nonetheless, it seems to me that we can do that, if we simply appreciate the correctio power of the legislative and amendment process.

In other words, why not get ourselves a right to self-defense legitimately?
7.16.2008 2:25pm
Dan Hamilton:
JA, You are one of the people causing all the problems.

You think that the Constitution is granting rights in the Bill of Rights. It is NOT. It is recognizing existing Natural Rights. Therefore the Right to self defense doesn't have to be in the Constitution it is a pre-existing Natural Right.

It might be hard to say that some right that have been found in the Constitution are Natural Rights (abortion) but the Natural Right to self-defense is not one of them.

The Constitution is positive document. It granst POWERS to Government. Only those powers in the Constitution should be available to the Government. If the Power isn't granted in the Constitution it doesn't exist.

But the Constitution Recognizes Pre-existing Natural Rights. Those that it sees as most important it lists in the BOR.

People always forget this. That is a BIG problem.

It is the reason the Founders believed that ALL Government eventually go bad. No ifs, ands, or buts. And why they put the Second in.
7.16.2008 4:38pm

In other words, why not get ourselves a right to self-defense legitimately?

JA: The snarky response to your reasoning is that there is nothing explicit, implied or what can be reasonably inferred from the text of the Constitution concerning a right to breathe.

You appear to read the Constitution in accordance with the Social Contract theory -- citizens only have those rights the government decides to allow them. However, Dan is correct -- the Constitution was envisioned as a limited grant of power from the citizens and states to the federal government -- the federal government only having thoses powers granted it -- and as a limitation on the powers of the federal government.

The "sub-text" that you appear to object to is the Common Law. If you do not believe that the Common Law exists, then there is no frame of reference against which the Constitution can be analyzed -- which will result in the arbitrary intrepretations you fear.
7.16.2008 7:41pm