pageok
pageok
pageok
A Skeptical View of A Constitutional Right to Self-Defense:
As I'm the VC's resident proponent of judicial restraint, it's probably not surprising that I'm not quite ready to accept Eugene's views about a federal constitutional right to self-defense. Just a few quick responses to Eugene's very interesting posts on the topic:

  (1) I agree that there are snippets of opinions that could be used to support an argument that there is some kind of constitutional right to self-defense. But these snippets strike me as just, well, snippets. A court could cite them if the court wanted to go there, but the authority itself doesn't seem to be strong enough to actually establish the point.

  (2) Eugene suggests that there can't be a Second Amendment right to use guns in self-defense without a general right to self-defense "because tradition is on the side of a right to self-defense using whatever means come to hand." I'd be interested in hearing more about this, as I don't think I understand its import. The fact that something is traditional doesn't mean without more that the constitution protects it.

  (3) On the question of whether Justice Scalia would recognize a constitutional right to self-defense, I don't know. I would think that such a move would be pretty inconsistent with his well-known opposition to judicially-crafted unenumerated rights. Such a move would be particularly ironic if Eugene is right in his argument that a constitutional right of self-defense explains parts of Roe v. Wade and Casey. But who knows.

  (4) The disagreement between Eugene and me reminds me a bit of our disagreement in April 2007 over the "defense of property" defense. You can read the exchange here. It was a different discussion, of course, but there's a common theme of my seeing the defenses as creatures of the legislature and Eugene seeing them as more general background principles.
Crackmonkeyjr (www):
With regards to whether there can be a constitutional right to use a gun for self defense without there being a constitutional right to self-defense, I don't think that this necessarily follows. For example, you can have a constitutional right to use a gun for all legal activities, and it may be the case that self-defense is a legal activity. Under this logic, which I think was really the logic in Heller, if the government banned self-defense, or the use of lethal force in self-defense, it could then become illegal to use a gun for self-defense. What the government could not do is make it so that you may only use a knife for self-defense, or that you can only use a shotgun, but not a pistol for self-defense.
7.16.2008 4:21pm
Boyd G (www):
Is there such a thing as a common law right? As the Bill of Rights points out, just because some rights are enumerated therein, that doesn't mean that those not enumerated don't exist.

So, why are you looking for a constitutional right to self defense? There's no need for it.
7.16.2008 4:23pm
Bpbatista (mail):
I don't need no stinkin' constitution to give me the right to defend myself. God gave me that right when I was born.
7.16.2008 4:25pm
Hearned Land:
And suddenly, from stage left, pops out the 9th Amendment to make a surprise appearance on stage and remind the players that the Bill of Rights is indeed a floor, not a ceiling.

If you're wondering why Tony didn't let self defense in the door, its because he's got to maintain the fiction that its a ceiling not a floor.
7.16.2008 4:28pm
Michael Poole (mail):
Justice Scalia may oppose "judicially-crafted unenumerated rights", but I think the argument that is being made here in favor of a "right to self-defense" is that the right is not judicially crafted -- instead, it need only be a judicially-recognized unenumerated right.

Is there a generally recognized right to walk across one's yard? If so, was it enumerated in the Constitution? If not, what is its origin? The answers to those questions should usefully inform the debate on whether there is a right to self-defense.
7.16.2008 4:29pm
Malthus:
These self-defense posts here deal with the right to use force to defend your property against attack by humans and wild animals. A greater problem is the right to kill an intruding cat or dog in defense of your property and your health.

Except for rabies, there are few diseases passed from wild animals to humans, but there are some 40 serious zoonoses that humans contract from contact with domestic animals, mainly cats and dogs, and their feces.

Texas has recently made it a felony to kill a cat that belongs to another. Apart from the silliness of requiring a person nto determine whether a cat is feral or someone's pet, it seems that any homeowner could rationally kill any intruding cat in self-defense, the Texas law notwithstanding.
7.16.2008 4:32pm
Germanicus:
I think part of the problem is that many people, like Bpbatista above, believe in natural rights, with the right to self-defense near the top of the list, while others are either legal realists who define a right as simply anything you can get a court to enforce, or people who think that natural rights are moral rights, but that doesn't necessarily mean the law will take them into consideration without unless they've been legally codified.

I tend to fall into the last category. I think everyone has a moral right to defend themselves against imminent mortal danger, to take the simplest case, but it's only a legal right if the courts will recognize it, and that's why the discussion Professor Kerr has started here is so important. I'm not sure whether the court recognized a constitutional right to general self-defense in Heller, but even if it has, the related jurisprudence is still too immature to say what exactly that right entails.

Both natural law and legal realism are respected traditions in jurisprudence, but members of each school will look at this question very differently.
7.16.2008 4:39pm
Anderson (mail):
I'm initially suspicious of a Constitutional right to self-defense, but it probably makes about as much sense as a Constitutional right to privacy.

Self-determination in private matters, like self-preservation, seems to be the kind of thing that a government is just expected to respect, or else.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --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.
7.16.2008 4:42pm
Fat Man (mail):
"but there's a common theme of my seeing the defenses as creatures of the legislature and Eugene seeing them as more general background principles."

No. The theme is that you are a big government liberal who believes that the individual is just a cell of the state, and has only those rights and liberties expressly granted by the state, which has the right to cancel any or all of them for the greater good.
7.16.2008 4:47pm
OrinKerr:
No. The theme is that you are a big government liberal who believes that the individual is just a cell of the state, and has only those rights and liberties expressly granted by the state, which has the right to cancel any or all of them for the greater good.

No. I am a small government classical liberal just like Eugene (and presumably just like you). I just don't think my views of good public policy determine what the founding charter of the U.S. Government actually means. The right of self-defense is foundational to my vision of a free society; I just see that as separate from whether the United States Constitution protects that right.
7.16.2008 4:52pm
cjwynes (mail):
I think EV's suggestion that Scalia's plurality opinion in the Montana case may signal that he's open to viewing self-defense as a fundamental right is a reach. All Scalia says in the Montana case is that one possible way to read a prior decision, which the plurality argued did not control on the immediate issue of voluntary intoxication instructions, is to read it as implying a right to self-defense. That's about as useful in ascertaining Scalia's opinion on an issue as some footnote in a committee report is in ascertaining the intent of Congress.

The Heller opinion provides alot more ammo for that claim, if I was making EV's case, I think I'd stick to that. I find it rhetorically advantageous to prune the weakest arguments, rather than use a shotgun-style approach that throws every argument out there in the hope that one sticks its target. Perhaps arguments that practicing lawyers consider a real stretch, and more likely to be a detriment to the case by their weak example, are more useful in academia.

In any event, I suppose if EV's argument prevailed, would we back to allowing apring guns and other hilarious-but-deadly booby traps, provided they were protecting an actual person in the residence at the time they are set?
7.16.2008 4:53pm
MarfaLights (mail):
Orin, do you agree with the following proposition? :

"Under Heller, a citizen has a right to deadly force with a firearm in his own home for self defense. If the state forbade deadly self-defense with a firearm in the home, such action would violate Heller."

It seems you must agree with this proposition, as that's basically what Heller says. The right to bear arms that the Court recognized was explicitly tied to self-defense in the home.

Now, there are two dimensions that follow which are important to your disagreement with Eugene: 1)mode of defense (i.e. the weapon) and 2)Spatial (i.e. where the defense takes place).
Isn't it a bit odd to say, "yes, Heller recognized self defense with gun in home - but if its with baseball bat etc. it's not under the constitution." That makes no sense; it wouldn't pass rational basis review. That is the mode of defense issue. Spatially, why in the world would it be that you can defend your life at home, but not, say, in Grand Central Station? This one is a little trickier, but still, it doesn't seem to hold water under even rational basis review. Surely the natural right to preserve one's life is just as acute outside the home.

If I'm right and both 1) and 2) are constitutionally "unbound" in the sense that spatially and temporally the state couldn't restrict self defense, then it seems there is a broad right to self defense recognized under Heller.
7.16.2008 4:53pm
OrinKerr:
MarfaLights,

You say that Heller "basically" says this; can you point to the passage of Heller that you have in mind?
7.16.2008 4:55pm
Rattan (mail):
Not to put too fine a point to it, the logic behind the Supreme Court decision is not entirely clear unless it is that many justices like to hunt. Just because the Constitution describes a right or expectation, it does not mean it translates into a right. For instance, the thirteenth to fifteenth amendment apparently preclude involuntary servitude and other ills of slavery. Prosecution for holding slaves or folks in involuntary servitude was not possible because there were no statutes to expressly criminalize it <a rel="nofollow" href="">http://www.newsweek.com/id/145762</a>.
Thus, unless there are laws to expressly criminalize or prohibit a prohibition on bearing arms, there is no enforceable right to bear arms no matter what the underlying sentiments.
The correct argument has yet to be made and the Court is not known to sua sponte come up with clear thinking. Hence its muddled decision.
7.16.2008 5:05pm
Tucker (mail):
This isn't 'judicial restraint', this is judicial head-in-the-sand. If there's no right to self-defense, that predates the Constitution, the Declaration of Independence, and the King of England, than under what scheme was the Declaration issued? If it wasn't an exercise of a God-given Right of self defense, what was it?
7.16.2008 5:07pm
Germanicus:
Rattan:

Interesting. If that's the case, then what exactly does the Constitution, and the BOR in particular, do?
7.16.2008 5:08pm
Germanicus:
Tucker:

A French financed right of insurrection.
7.16.2008 5:09pm
Tucker (mail):
Or I suppose, on second thought, the argument would be that you have a right to Life and Liberty, since it's explicitly mentioned in the Declaration, but no right to defend that Life and Liberty? That makes a lot of sense. I'm sure the Signers of the Declaration, putting their Lives and Liberty on the line to defend their Lives and Liberty, would find that a perfectly compelling argument.
7.16.2008 5:11pm
Richard Riley (mail):
Apologies if someone has already noted this in the comments on Orin's and Eugene's several posts here, but Sanford Levinson had an interesting post on Balkinization a week or so ago on the issue of banning hunting after Heller.

Could a state legislature ban hunting, in light of Heller, given that most people would agree that (in addition to self-defense) subsistence hunting was an important use of firearms at the time of adoption of the 2nd Amendment? Levinson thinks hunting COULD be banned, and I am inclined to agree with him - suggesting that the right to bear arms does NOT necessarily imply constitutional protection of certain subsidiary "rights," such as hunting and - I would say - self-defense using firearms.
7.16.2008 5:12pm
OrinKerr:
Tucker,

I am making an argument based on existing law and precedents. If you believe in natural rights and that the U.S. Constitution protects all of them, I understand that you would reach a different conclusion.
7.16.2008 5:14pm
PLR:
I don't need no stinkin' constitution to give me the right to defend myself. God gave me that right when I was born.

Sometimes it clarifies things to state the obvious.

I don't pretend this is an original thought, not having read the many threads on this topic, but it's not intuitively obvious to me that the Second Amendment uniquely creates a right that protects me from my fellow citizen, while the rest of the original Ten protect me from government action.
7.16.2008 5:14pm
James Gibson (mail):
This whole debate is just a professor's attempt to make all of us his students, and I pitty his students if they have to go through this twice a week. Its like arguing that you have a constitutional right to freedom of speech, but since you don't have the right to breath you can't use it. Thats all Orin is arguing, that as long as there is a necessary X action to accomplish the Constitutional Y action, you can prevent Y by banning the non-constitutional X. No general right to self-defense thus no right to self-defense with a gun.

Personally, I like this discussion in a different manner. Would Professor Orin agree that since four justices of the Supreme Court agreed that the right to petition is a collective right that it is now finally legal to suspend the Magna Carta right to Habeus Corpus to individuals unless said individual can must a petition signed by a significant number of persons and thus meet the requirements of collective as now required by the court. Be reminded, the word Priviledge is used in Article One Section 9 of the Constitution when Habeus Corpus is discribed.
7.16.2008 5:16pm
Dilan Esper (mail) (www):
Justice Scalia may oppose "judicially-crafted unenumerated rights", but I think the argument that is being made here in favor of a "right to self-defense" is that the right is not judicially crafted -- instead, it need only be a judicially-recognized unenumerated right.

Scalia was very clear in Michael H. v. Gerald D. that he would only accept unenumerated rights at the most specific level of generality, i.e., was there a tradition that THIS PARTICULAR KIND OF LAW THAT THE PARTY SEEKS TO INVALIDATE was beyond the powers of government at the time the Constitution was adopted. (When you think about it, he has to take this position, or else it is really easy to justify Roe v. Wade based on amorphous concepts of privacy and dignity that the framers are alleged to have believed in.)

If Scalia was not simply blowing smoke in Michael H., he can't support a free-floating unenumerated right to self-defense.
7.16.2008 5:17pm
Soronel Haetir (mail):
OK,

I would argue, without pointing to any particular statement, that the court's invalidation of restrictions preventing the rendering operable a firearm would be the sought for authority. Given that Heller is almost entirely a 'keep' case without considering most of the ramifications of 'bear' there would be no reason to invalidate that particular restriction if there were no right to actually use the firearm in at least some circumstances.

I am not going to argue either the limits of such a right (how much can it be constrained by the state), or whether such a right flows from the Constitution. Are only those rights which flow from the Constitution enforcable?
7.16.2008 5:23pm
darelf:
You mean like this:

Held:
1. The Second Amendment protects an individual right to possess a
firearm unconnected with service in a militia, and to use that arm for
traditionally lawful purposes, such as self-defense within the home.


According to my understanding of the English language, this directly says that self-defense is a "lawful purpose[]" in regards to use of arms.

Or do you mean:
the inherent right of self-defense

mentioned on page 56?

Or on page 60 where we find "It is inconceivable that this law would have been enforced against a person exercising his right to self-defense"... what right to self-defense?

It is not a misunderstanding that the Heller opinion on numerous occasions states that there is a "right to self-defense" and that this right is intrinsically bound up in the Second Amendment.( pg 56 " the inherent right of self-defense has been central to the Second Amendment right." )
7.16.2008 5:29pm
OrinKerr:
This whole debate is just a professor's attempt to make all of us his students, and I pitty his students if they have to go through this twice a week.

I pitty them, too. But your description of my position is false; if you read my posts more closely, you'll realize that I'm actually wondering about the more general right, not the right in the Second Amendment context.
7.16.2008 5:30pm
JN Heath (mail):
Government has no legal duty to protect you according to the caselaw, and you have no constitutional right to protect yourself according to Oren. So in Oren's scheme, as I understand it, government can constitutionally place you under a legal duty to submit and die if violently attacked.

There must be something wrong here -- perhaps a Fifth/Fourteenth Amendment problem. Certainly this is a deprivation of life w/o due process? Otherwise it sounds like something from Peter Suber's _Case of the Spelunkean Explorers_.

Perhaps the Fifth and Fourteenth Amendments ought to be interpreted to require government to statutorily allow for self-defense, a little like the Sixth imposes an obligation to statutorily provide for jury trials (I think).

JNH
7.16.2008 5:37pm
Head of a pin:
Practically, if someone is trying to kill me, it makes little difference whether or not there is a constitutional right of self-defense. I'm better off taking my chance on a subsequent charge of assault or murder than facing an immediate risk of death.

A more difficult question is defense of others. I suppose, if there is no such constitutional right, I could be convicted of homicide for killing a man who is in the process of trying to strangle my daughter. I suppose a cold calculatoin to maximize the preservation of my own life would force me to stand by.

But then again, to argue that the government could prosecute me for intervening in such a situation (why limit it to a ban on using deadly force? if there is no right to defense of self or others, why couldn't I be prosecuted for battery or false imprisonment for merely using physical force to stop the attack) is to demonstrate that we are in cloud cuckoo land here folks.
7.16.2008 5:37pm
unitra (mail):
If there is a constitutional right to privacy, there's a constitutional right to self defense.

Enough said.
7.16.2008 5:44pm
JN Heath (mail):
Orin -- apologies for the misspelling.

JNH
7.16.2008 5:46pm
Soronel Haetir (mail):
Darrel,

While I appreciate your first citation, I believe that's from the syllabus which can't be used for such a purpose as I understand the rules.
7.16.2008 5:47pm
Germanicus:
Head of a pin:

Professor Kerr has said "The right of self-defense is foundational to my vision of a free society." I have no doubt at all that he would agree that the scenario you describe would be terrible. This discussion isn't about that, however. This discussion is about whether this country's Constitution protects the right of self-defense, or whether that right is merely protected by the fact that to legislate away a right to self-defense would be political suicide. There are a lot of policies I can think of which are absolutely fundamental to our way of life, but which are not protected by the constitution, just as I can think of abominable policies, like slavery, which were at one time protected. The constitution isn't perfect, and it's a valid inquiry to look into whether it protects this particular right even if you're not advocating a government ban on self-defense.
7.16.2008 5:47pm
JA (mail):
I'm pretty sure Eugene's first point is a misreading of what Heller was doing. Eugene writes: "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?"

The actually holding says, "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home." The issue of self-defense came up to support the Court's determination that the right enshrined by the Second Amendment is an individual right rather than a collective one connected to service in a militia. The Anti-Federalists demanded the codification of this right "to deny Congress power to abridge the ancient right of individuals to keep and beararms, so that the ideal of a citizens’ militia would be preserved."

True, the opinion goes on to speak about how "keeping arms" was, historically, intimately tied to the idea of self-defense -- but again, only in the context of this being an individual rather than a collective right.
7.16.2008 5:47pm
Waldensian (mail):
I think Heller can fairly be read to recognize, albeit somewhat breezily, a right to self defense. I think this is largely inconsistent with Scalia's previously stated views on the judicial recognition of unenumerated rights.

The disagreement between Eugene and I

Grammar alert! :)
7.16.2008 5:48pm
JosephSlater (mail):
This basic question might have been covered in the several other threads on this topic, but what exactly are the practical consequences of there being or not being a specifically constitutional right to self-defense? After all, tort law (which I know something about) uniformly allows self-defense as a defense in, say, assault or battery cases. While I'm not a crim law guy, my understanding is that self-defense is a well-established defense there too.

I can think of two things constitutionalizing would do. One, it would prevent governments (state governments if the 2nd Am. is incorporated?) from getting rid of currently existing rights of self-defense in tort and criminal law. OK, but is the prospect of state governments doing that a realistic threat?

Second, I suppose that a court could find that the constitutional right is greater than the common-law right. So, maybe the limited "duty to retreat" rules that currently exist in a minority of states would be unconstitutional? But why would it necessarily be that the constitutional right would be broader than the common law right?

Am I missing something obvious?
7.16.2008 5:54pm
Repeal 16-17 (mail):
Waldensian, as stated in earlier posts, the Fifth and Fourteenth Amendments state that people can not be denied life without due process. Wouldn't prohibiting self-defense lead to such a denial? The Due Process Clauses are enumerated.
7.16.2008 5:55pm
Germanicus:
The Fifth and Fourteenth Amendments don't protect people from dying without Due Process, they prevent the government from taking someone's life without due process. Most government policies include the risk of people dying. Actuaries make their living discussing it. By raising the speed limit, the government can be confident that more people will die, but that doesn't invoke the Fifth and Fourteenth, and neither would criminalizing self-defense.
7.16.2008 6:05pm
darelf:
Soronel Haetir,
Yes. I apologize. It is actually quoting a statement made on page 3 of the opinion, however that is "respondent argues". Still, if the opinion holds for said respondent, then .... ?
7.16.2008 6:08pm
phants (mail):
There is a natural right of (self) defense which is inherrent and employed by any living creature, even without the requirement or ability to express it in language. Any act of aggression has two natural and proper responses; defense and attack of retaliation.

There are two labels for beings that do not recognize this: dead and extinct.

If The Constitution does not recognize and/or protect this right, I have the right to not-recognize and/or not-protect it in return. Lawyers, evidently not being subtle creatures, should be reminded that The Founders had a response to the conundrum; and Shakespeare proposed another solution.
7.16.2008 6:09pm
Tucker (mail):
So Orin, you believe that the Declaration of Independence has no value in determining the rights assigned under the Bill of Rights?

I reread the Federalist Papers, and I think this part is addressed to you directly:

"I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government."

http://federali.st/84
7.16.2008 6:13pm
Repeal 16-17 (mail):
Germanicus, I'm not talking about a law that might lead to a death. Banning self-defense would definitely lead to death. Just because the government isn't directly leading to the death shouldn't make a difference. If a court (whether by judge or jury) sentenced someone to death and then had a private party conduct the execution (instead of doing it itself), would that make the death penalty immune from judicial review since the government wouldn't be conducting the execution?
7.16.2008 6:17pm
OrinKerr:
Tucker,

You are confusing "is" with "ought." As I said before, I am making an argument based on existing law and precedents. I realize that you have a normative view about how you think the Supreme Court should interpret the Constitution. But that doesn't really address my post, which is about what the law presently is.
7.16.2008 6:22pm
Clayton E. Cramer (mail) (www):

I'm initially suspicious of a Constitutional right to self-defense, but it probably makes about as much sense as a Constitutional right to privacy.
The difference is that a right to self-defense was part of the law in 1789, generally recognized as such (see Justice James Wilson's remarks about this which imply that it creates a right to armed self-defense). See also John Adams's remarks in A Defence of the Constitutions of the United States of America (1786) which considered self-defense so critical that Adams allowed the state to regulate people arming themselves--as long as individual self-defense was exempted from such regulation.

And where are the statements by the Framers about a right to privacy? They believed in it so little that they left intact laws that criminalized (in many case, as a capital crime) laws against private, consensual acts such as adultery, oral sex, and anal sex. If the Framers thought that there was a right to privacy (as distinguished from the more limited search and seizure protections of the Bill of Rights), they sure didn't act like it.
7.16.2008 6:24pm
Clayton E. Cramer (mail) (www):
Germanicus writes:

Tucker:

A French financed right of insurrection.
While the French did by late 1776 provide significant numbers of weapons at a bargain-basement price, by then the Revolution had been under way for way more than a year, and largely with weapons that were privately owned (at least at first, until the government started buying them or impressing them).
7.16.2008 6:27pm
Clayton E. Cramer (mail) (www):

If The Constitution does not recognize and/or protect this right, I have the right to not-recognize and/or not-protect it in return. Lawyers, evidently not being subtle creatures, should be reminded that The Founders had a response to the conundrum; and Shakespeare proposed another solution.
One of my great concerns is that there is an emerging elite perspective that regards self-defense as despicable. A few years back, I had a conversation with one of the editors at the San Francisco Chronicle, and he flat out denied that there was ANY moral difference between a murderer and a murderer's victim using deadly force in self-defense. Like many convenient pacifists, he saw aggression and self-defense as morally equivalent, and thus saw no problem with laws that disarmed the victims.

And once this becomes law, then the law deserves no respect. Those who enforce such laws are outlaws, and deserving of whatever happens to them.
7.16.2008 6:31pm
JosephSlater (mail):
Clayton:

You don't seriously think that there is ANY CHANCE that any legislature -- even the city council in the San Francisco you despise so much -- would try to do away with the basic right of self-defense in tort or criminal law, do you? Really?

Which gets me back to my question of what the *practical* consequence of a constitutional right to self-defense would be.
7.16.2008 6:35pm
Clayton E. Cramer (mail) (www):

I can think of two things constitutionalizing would do. One, it would prevent governments (state governments if the 2nd Am. is incorporated?) from getting rid of currently existing rights of self-defense in tort and criminal law. OK, but is the prospect of state governments doing that a realistic threat?
Maybe not legislatively, but judicially. There have already been attempts. As I discuss here,
Black v. Indiana, No. 71A03-0502-CR-56 (Ind.App. 2005) overturned a conviction because the judge refused to allow the defense during voir dire to question jurors whether they had a moral objection to self-defense. (This was important, because the defendant was arguing that the killing was in self-defense.)

The Indiana Court of Appeals overturned the conviction on the grounds that the Indiana Const. RKBA provision allows one to bear arms in self-defense, and by prohibiting questions like this, there was a real risk that jurors who had a moral objection to self-defense (of which there are probably many in Indiana) would end up on the jury--to the detriment of Black's constitutional right to self-defense.

I think a lot of what drives this desire to criminalize self-defense is that it then provides an excuse to disarm the population.
7.16.2008 6:39pm
Clayton E. Cramer (mail) (www):

You don't seriously think that there is ANY CHANCE that any legislature -- even the city council in the San Francisco you despise so much -- would try to do away with the basic right of self-defense in tort or criminal law, do you? Really?
See above.

It is certainly the case that the right of self-defense has been so hemmed in under English law that while it is technically legal, in practice, there are only a few circumstances where it is allowed. They sent a guy to prison a few years ago because he walked in on a burglar, got into a fight, and the resident used a knife in self-defense. There are a lot of totalitarians out there, and they would like nothing more than to have everyone cowering in fear, waiting for the police to show up. After all, the government is the source of all good things? Anything done privately is suspect.
7.16.2008 6:42pm
Ignatius (www):
As I'm the VC's resident proponent of judicial restraint . . .

A Kennedy clerk as the resident proponent of judicial restraint.
7.16.2008 6:43pm
Clayton E. Cramer (mail) (www):

You don't seriously think that there is ANY CHANCE that any legislature -- even the city council in the San Francisco you despise so much -- would try to do away with the basic right of self-defense in tort or criminal law, do you? Really?
San Francisco's raving moronic liberals didn't just ban guns in public housing--they explicitly banned water pistols in your home!


Firearms, Knives &Weapons -- Residents and their guests may not possess or store a firearm, BB gun, air gun, paintball gun, pellet gun or any other item that discharges ammunition, bullets, etc. Water guns are prohibited. Anything that looks like a gun or a weapon is prohibited. Use of any item as an imitation weapon is strictly prohibited. Use of any item including but not limited to knives, blades, swords, pipes, bats, sticks, batons, chains, tools, rocks and guns as a weapon or the threat of a weapon is strictly prohibited. Violation of this lease provision is grounds for immediate eviction.
Is there anything too stupid or evil for San Francisco government to do? I don't think so.
7.16.2008 6:46pm
MarfaLights (mail):
Orin: Sure; although you asked if I could cite "the" passage I had in mind - I think there are several -

From syllabus of slip opinion: "Held: 1. The Second Amendment protects and individual right to possess a firearm...and to use that firearm for traditionally lawful purposes, such as self defense within the home." (emphasis added).

The Court said D.C.'s ban on handguns was unconstitutional because it "amounts to a prohibition on an entire class of 'arms' that Americans overwhelmingly choose for the lawful purpose of self-defense".

"The requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional."

"JUSTICE BREYER’s asser-tion 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 wasthe central component of the right itself."

"That of the nine state constitutional protections for the right to bear arms en-acted 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 generationconceived of the right. And with one possible exception that we discuss in Part II–D–2, 19th-century courts and commentators interpreted these state constitutional provi-sions to protect an individual right to use arms for self-defense."

"It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense."


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


hth. Please address my original post. TYIA
7.16.2008 6:48pm
Clayton E. Cramer (mail) (www):

As I'm the VC's resident proponent of judicial restraint . . .

A Kennedy clerk as the resident proponent of judicial restraint.
Who better to know the importance of it?
7.16.2008 6:54pm
Germanicus:
Repeal 16-17:

A law banning self-defense would cause death if someone was attacked and failed to run away. I'll agree with you that this is a statistical certainty.

Similarly, the EPA has to decide where to set allowable limits on certain hazardous materials, and they set the limit knowing that people will die who wouldn't have if they set it higher. Similar calculations are done in many situations the government comes across. These deaths are just as statistically certain as the death from inability to defend oneself. The government doesn't (as far as I know) tell criminals to break into people's houses and try to kill them, so they aren't the one's taking life without due process in your scenario.

If your dystopian scenario came true, I would share your outrage, but I wouldn't base my legal arguments on those particular Amendments.

Clayton E. Cramer:

I know.
7.16.2008 6:55pm
JosephSlater (mail):
Clayton:

In the material you link, you have one case in which a trial judge didn't allow the defense to ask potential jurors, on voir dire, whether they had a moral objection to self-defense. That, according to your description, was on the theory that it wasn't relevant because the defense hadn't raised the theory. And that decision was reversed on appeal. Forgive me, but that hardly supports your fear that there is some "drive to crimilize self-defense" in the U.S.

Also, your linked piece and other posts claim that you know various folks who "don't believe in the right of self-defense." I know a lot of liberals (and conservatives, and moderates), and I can't think of ANY who don't believe that there should be a basic right of self-defense. Now, there may be some people out there who don't believe that *deadly* force is justified, or that it's rarely justified, and there are of course a handful of pacifists who presumably wouldn't use violence themselves even in self-defense, but they are a tiny minority (and I'm not aware of any pacifists trying to legislate that part of their beliefs into requirements for others).

Again, do you *really* think there is a significant risk that courts or legislatures would decide, e.g., that if A tries to stab B in the bar, and B avoids that stabbing by grabbing A's arm and forcibly disarming him, that B's acts were not legally justified?

Of course, none of this goes to whether there is or isn't a constitutional right to self-defense, or whether there should or shouldn't be one. But you still haven't convinced me there would be any important practical consequence to the right if it were found to be constitutional.
7.16.2008 6:56pm
MarfaLights (mail):
JA:

You say Eugene is misreading Heller because self defense only came up to support the notion of an individual rather than a collective right.

But the very passage you cite shows it goes beyond that. It explicitly says that the Second Amendment protect gun ownership PLUS its use in self defense. It doesn't say gun ownership - oh and p.s. it was for lawful individual purposes like self defense not merely collective purposes. Rather, the passage you cited explicitly states that self-defense with a gun is actively protected under the 2cd.
7.16.2008 6:56pm
Clayton E. Cramer (mail) (www):

Also, your linked piece and other posts claim that you know various folks who "don't believe in the right of self-defense." I know a lot of liberals (and conservatives, and moderates), and I can't think of ANY who don't believe that there should be a basic right of self-defense.
I confess since I left the Bay Area, I find such lunatics much less often. I doubt that the editors of our local newspaper would support such a crazy idea. But then again, the San Francisco Chronicle--who's ever heard of it?


Now, there may be some people out there who don't believe that *deadly* force is justified, or that it's rarely justified,
No, I am talking about people that believe that it is never justified and that there is moral equivalence between self-defense and murder.
and there are of course a handful of pacifists who presumably wouldn't use violence themselves even in self-defense, but they are a tiny minority (and I'm not aware of any pacifists trying to legislate that part of their beliefs into requirements for others).
A tiny minority in a position of power can do a lot of damage to a society, especially if they sit on the bench. And yes, real pacifists wouldn't send out armed police officers to enforce their views. Convenient pacifists, such as play significant roles in the gun control movement, are prepared to do so.


Again, do you *really* think there is a significant risk that courts or legislatures would decide, e.g., that if A tries to stab B in the bar, and B avoids that stabbing by grabbing A's arm and forcibly disarming him, that B's acts were not legally justified?
Britain's Offences Against the Person Act (1862) had as its objective proportionate use of force. If someone took a swing at you, the goal was make sure that you didn't draw a gun and shoot him. But somewhere along the way, in the 1970s, the British legal system lost the plot on this.

Flashback to 1970 California: "Again, do you *really* think there is a significant risk that courts or legislatures would decide that there is a constitutional right for two men to get married? Especially since homosexual sex is a felony?" Slippery slopes aren't just greased with K-Y Jelly.
7.16.2008 7:12pm
JA (mail):
Let me expand a little.

First, it's pretty clear that the Syllabus isn't recognizing a Constitutional right to self-defense. When it refers to self-defense by itself, the latter is always qualified by the word "lawful" or by phrases like "the core lawful purpose of self-defense."

Second, Heller's complaint: his lawsuit claimed that DC's statute effectively prohibits the use of "functional firearms within the home", and therefore violated his rights. DC denied, and the Court of Appeals reversed, construing Heller's complaint as "seeking the right to render a firearm operable and carry it about his home in that condition only when necessary for self-defense." Footnote 2 of Heller applies here, and reads, "That construction has not been challenged." Indeed, the thrust of Respondent's Brief is that the right to keep and bear arms is "an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home." The function of the term "such as" is to introduce an example of a class in order to clarify it; here, the class is "traditionally lawful purposes". Presumably, another traditionally lawful purpose is hunting; if we stopped here, we'd have to say that, using Heller to argue self-defense as a Constitutional right, you'd also have to argue hunting as a Constitutional right. Indeed, to be consistent you'd have to argue the entire class.

"Self-defense" next comes up when determining the object of the right -- i.e., arms. The thrust of this section is that the meaning of "arms" is broader than a "collective rights" reading would imply. "The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity." Again, the reasoning's main emphasis is the untenability of a "collective right" interpretation of the Second Amendment.

Indeed, this core context determines the rest of the analysis. Pace Petitioners, "keep arms" does not have a specifically military connotation; instead, it was "simply a common way of referring to possessing arms, for militiamen and everyone else." "Bear arms" does have an idiomatic meaning, however: it means to carry arms in case of confrontation. (Id., referencing Ginsburg's dissent in Muscarello). Importantly, the right is not to use arms for self-defense, but to carry them "upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person", which tends to undermine the right to self-defense argument unless the right to "offense" is in there as well.

Gluing this all back together, the majority "find that [the Second Amendment guarantees] the individual right to possess and carry weapons in case of confrontation." This is distinct from the right to use the weapons in self-defense. The right to keep and carry arms flows from respect for the equality of all men; indeed, it actualizes this ideal, both in terms of power, and in terms of responsibility. Both the natural right of self-preservation, and the goal of "a nation of citizens not subjects" were factors in its codification. However, to get from there to a Constitutionally protected right to self-defense is quite a leap, unless we assume that all such factors which lead to the codification of Rights are protected.

The next time "self-defense" crops, its in the context of determining "what types of weapons Miller permits." Reinforcing the "not specifically military" meme, the opinion defines the class of allowable weapons as "used for lawful purposes", since under Miller men who were called to militia service "were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." Again, the phrase "for lawful purposes, like self-defense" appears.

Of course, the water gets muddied quite a bit when the opinion turns to the DC law, particular this gem: "As the quotations earlier in this opinion demonstrate,the inherent right of self-defense has been central to the Second Amendment right.the inherent right of self-defense has been central to the Second Amendment right." I take this as meaning "the belief in this natural right was a central factor in the codification of the amendment." True, the history here is much stronger than anything in support of a "right to privacy", and the opinion did use the term "inherent right". Nevertheless, as the preceding textual analysis makes clear, this referencing of history and subtext was made to clarify the original meaning of the text, not to provide theoretical grounds for a new right. And the following sentence reduces the act of self-defense from an "inherent right" to "that lawful purpose."

The other arguments for a Constitutional right to self-defense are entirely dependent on history and subtext, rather than turning to history and subtext to resolve an ambiguity. As such they are not different in kind but only in degree from emanations-of-penumbra-style reasoning -- as I said on Eugene's thread, supra.

That said, I would prefer a Constitutionally protected right to self-defense. I just don't think we have one right now, unless the Court determines we have one by Griswold-style fiat.
7.16.2008 7:44pm
Dilan Esper (mail) (www):
And where are the statements by the Framers about a right to privacy? They believed in it so little that they left intact laws that criminalized (in many case, as a capital crime) laws against private, consensual acts such as adultery, oral sex, and anal sex. If the Framers thought that there was a right to privacy (as distinguished from the more limited search and seizure protections of the Bill of Rights), they sure didn't act like it.

They didn't act like there was anything more than perhaps a very limited right to self-defense either. Self-defense defenses to criminal prosecutions and tort actions for assault, battery, and homicide were quite limited in many jurisdictions, and yet nobody thought those limitations were unconstitutional.

Look, at bottom, when divorced from the Second Amendment right to own a gun, this is a claim about penumbras and emanations being used to invalidate long-established common law doctrines. That doesn't make it wrong, but it does make all these conservative defenses about "oh no, it's really different from the decisions we don't like and have been condemning as judicial activism for so long" rather silly.

There's no way this can be squared with Scalia's level of generality analysis in Michael H. And you need that if you want to continue claiming that decisions like Roe are unprincipled.
7.16.2008 7:51pm
U.Va. 3L:

Flashback to 1970 California: "Again, do you *really* think there is a significant risk that courts or legislatures would decide that there is a constitutional right for two men to get married? Especially since homosexual sex is a felony?" Slippery slopes aren't just greased with K-Y Jelly.

This is a nice analogy and all, but it doesn't answer Joseph Slater's question. Do you or do you not believe that there is a significant risk that courts or legislatures will do away with the right of self-defense in tort and criminal cases?
7.16.2008 7:52pm
zippypinhead:
Professor Kerr wrote:
"As I said before, I am making an argument based on existing law and precedents. . . . [M]y post . . . is about what the law presently is."
Well then, I guess that we can all stop arguing, as we have clearly reached a consensus! Time to kill the Fatted Calf and have a feast (unless killing Fatted Calves is prohibited by the Endangered Species Act even if a rare variant of obese juvenile bovine is destroying your property?)

Or with tongue slightly less firmly planted in cheek: There's no dispute what "the law presently is." All states and the Federal government universally recognize a right to individual self-defense, either explicitly by statute/constitution, or through the common law doctrine of legal justification. And the antecedents of these laws can be traced back through Locke, Cicero, the Bible, and hundreds if not thousands of other sources. Whether Justice Scalia is less than entirely consistent given his Ninth Amendment musings in other contexts is interesting, but is an entirely different question that doesn't alter the extraordinarily high normative consensus on this issue that appears to have overcome even Scalia's doctrinal purity.

I suspect that even the editorial board of the San Francisco Chronicle, which undoubtedly supports the "evolving standards" 8th Amendment mode of "living Constitution" analysis, would grudgingly concede the principle of legitimate self-defense is much more entrenched than, for example, abrogation of capital punishment for child rapists [oops, sorry to reopen that justly-critiqued Pandora's Box]. And whomever Clayton ran into at that paper must have been speaking from a personal moral position shared by only a few fringe philosophies (e.g., the Amish, some of the more militantly passive Quakers, and apparently a majority of the the UK House of Commons?).

Bottom line: after Heller, it's going to be even more difficult to uphold any UK-style criminalization of self-defense in the U.S.
7.16.2008 7:58pm
arbitraryaardvark (mail) (www):
Dilan Esper: that is the best post I've seen by you in this forum; I think you have it exactly right, up till the last sentence. My guess is, that in a case raising the issue, Scalia would be likely to find a historical tradition of this kind of law, and support an unenumerated right, perhaps under due process, maybe even under the 9th or 2nd.
7.16.2008 8:05pm
OrinKerr:
There's no dispute what "the law presently is." All states and the Federal government universally recognize a right to individual self-defense, either explicitly by statute/constitution, or through the common law doctrine of legal justification.

To clarify, the issue we're debating is what the Constitution protects, not the operative rule of law more generally. I believe that's been the common understanding of all of us blogging on the issue: Sorry if that was unclear before.
7.16.2008 8:07pm
Clayton E. Cramer (mail) (www):

They didn't act like there was anything more than perhaps a very limited right to self-defense either. Self-defense defenses to criminal prosecutions and tort actions for assault, battery, and homicide were quite limited in many jurisdictions, and yet nobody thought those limitations were unconstitutional.
There are a couple of different claims on this point: one that asserts that the broad protection of a right to use deadly force developed in the 19th century. Richard Maxwell Brown's No Duty To Retreat: Violence and Values in American History and Society makes that claim. Others are skeptical, and my own research suggests that Brown has at least overstated the duty to retreat.

It is true that the common law did not recognize a right to use deadly force even in self-defense. Until 1532, you would lose all your assets, and have to throw yourself on the mercy of the king for a pardon. Parliament in that year changed the law so that the use of deadly force in self-defense against burglary, robbery, or murder, was now legal--and without loss of property, or the need to beg for the king's pardon. But when I look at the cases that I find scattered about it in the Colonial and Revolutionary period, if there was no right to use or threaten deadly force in self-defense, it seems not to have been widely noticed.
7.16.2008 8:21pm
Clayton E. Cramer (mail) (www):

Do you or do you not believe that there is a significant risk that courts or legislatures will do away with the right of self-defense in tort and criminal cases?
I think there is a risk. I wouldn't call it a high risk. It's certainly more likely than the 1970 example that I gave. In 1970, you would have had a hard time finding anyone outside a mental hospital prepared to argue for homosexual marriage. Unlike those arguing that a murderer and his victim are morally equivalent. Unless, I suppose, you consider the San Francisco Chronicle an insane asylum. When really, it is the whole city that is the unlocked ward. :-)
7.16.2008 8:24pm
zippypinhead:
Professor Kerr:

Sorry for being mildly snarky, especially towards a brilliant legal thinker such as yourself whom I greatly respect. Of course it's clear what is being discussed. However, in this instance I read Justice Scalia's apparent assumptions about the existence of an implied right of self-defense as an indication that it is so well-entrenched that even he shortcut his normal doctrinal framework for analyzing Constitutional rights. And frankly, having given voice to the assumption that such a right exists in Heller, the Court has in effect explicitly Constitutionalized the right. It's even more remarkable that Justice Scalia did this, rather than an acolyte of, say, Justice Douglas.

While I generally assume that whenever I disagree with you I must be wrong, in this instance I really do think Professor Volokh has the better argument.
7.16.2008 8:24pm
Clayton E. Cramer (mail) (www):

Look, at bottom, when divorced from the Second Amendment right to own a gun, this is a claim about penumbras and emanations being used to invalidate long-established common law doctrines.
Actually, no. This is a claim about Ninth Amendment rights protecting a right to self-defense from federal infringement. I don't see any plausible way to incorporate the Ninth Amendment through the 14th Amendment.

If you can demonstrate that there was not a right to self-defense in 1791, then my argument goes out the window. But I think you are going to have a heck of a time making that claim, when there is enough evidence that the right was recognized.
7.16.2008 8:29pm
arbitraryaardvark (mail) (www):
(i was interrupted by a telemarketer and didn't hit publish until the thread had moved on.) i think i was wrong before; Scalia does explicitly state that there is a second amendment right of self-defense. Orin is probably still right that Scalia's not saying the right is a general one, but is protected under the 2nd in the context of firearms (and probably other arms such as swords). Whether Scalia and the court will recognize a more general right of self defense under the constitution, and which constitutional provision they will peg it to, is a question for another day. Heller:
"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."
7.16.2008 8:38pm
Dilan Esper (mail) (www):
Clayton:

I think one could argue from any number of traditions that there was a right of self-defense in 1791. I certainly think that the Second Amendment recognized a right to own a gun which effectively conveys a limited right of self defense.

What I don't buy is that an ORIGINALIST could justify striking down common law restrictions on the assertion of self-defense rights in tort and criminal actions on the basis of such of right. It seems to me that it is abundantly clear that nobody understood the Constitution as imposing a minimum standard for common law defenses of self-defense in such cases. And under the Scalia level of generality analysis, that means the right of self-defense can't now extend to impose such a standard.

Now, if you want to talk in terms of a living constitution or penumbras and emanations, you may very well get to a right of self-defense that DOES impose such restrictions. That's quite possible, in my view, the same way that New York Times v. Sullivan extended the First Amendment to libel laws. But then, I am not an originalist, so I don't have these problems.
7.16.2008 9:08pm
wuzzagrunt (mail):
Pardon me for not reading all the way through the comments before posting, but I have to get ready for work.

I've seen the argument made in various opinion pieces, and (I think) scholarly papers, that the individual right to self defense animates the "life/health of the mother" justification for late term abortions. Has such an position ever been argued in an actual court?
7.16.2008 9:10pm
phants (mail):
Clayton E. Cramer:


I had a conversation with one of the editors at the San Francisco Chronicle, and he flat out denied that there was ANY moral difference between a murderer and a murderer's victim using deadly force in self-defense

There may be one (or two) that believe that and would act on that but I sincerely doubt it. That's fine as a moral stance for pontificating or to emphasize belief or to expect only of others, but he didn't get to be an editor without an encounter of opposition. Success in that field involves confrontation, fighting and winning and those are only less physical levels of this subject.

This is also a selfish and self-centered view. If one were to grab him by the throat to choke him, expecting him to allow his own murder, as thoughts of the welfare of his children, wife, parents and loved ones flash through his mind then I pity him - but I fear him as well. That he would require this of of me and my loved ones is not morality but depravity.
7.16.2008 9:20pm
Bpbatista (mail):
"The first thing we do, kill all the lawyers."

Start acting on that plan and I guarantee you that every court in the land will recognize a constitutional right to self defense.

Only in some bizzaro lawyer world -- like this one -- is this even a subject for debate.
7.16.2008 9:57pm
Joshua:
Here is a Samizdata piece on the history of UK laws as they pertain to self-defense. It seems to me after reading this that the UK's problems are their own, as they have nothing readily analogous to Heller.

Re: my previous argument-for-argument's-sake that a self-defense right would butt up against due process - not surprisingly, Heller says nothing about this, as far as I can tell. Still, it occurs to me that if self-defense as a constitutional right were ever revisited by SCOTUS on its own merits, the justices would have to look long and hard at how that right would interact with other rights, especially the enumerated ones.

The danger isn't that unenumerated rights exist per se, it's that they could ever be held to trump the enumerated rights, because that would open the floodgates to any manner and number of abuses. Lawmakers intent on doing an end-run around some enumerated right(s), for whatever purpose, would only have to couch their legislation in the guise of asserting/protecting some obscure, if not outright bogus unenumerated right(s), and let the courts do what they will with it. Who knows, the lawmakers might get lucky and have their legislation prevail, à la McCain-Feingold. If they do, even our enumerated rights are in serious jeopardy.
7.16.2008 10:20pm
Clayton E. Cramer (mail) (www):

What I don't buy is that an ORIGINALIST could justify striking down common law restrictions on the assertion of self-defense rights in tort and criminal actions on the basis of such of right.
I can agree with you on this, but then again, common law limitations on self-defense (except for the provision in the Seventh Amendment relating to civil suits) isn't frozen by the Constitution's 1791 understanding. States have been free to make statutory changes, and have done so.
7.16.2008 10:39pm
Clayton E. Cramer (mail) (www):

There may be one (or two) that believe that and would act on that but I sincerely doubt it.
I've talked to a number of that believe this. Would they act on it? I have no idea. They only have to use their control over the judiciary to make self-defense unlawful to create a heck of a problem, one that would probably be only correctable by revolution.
7.16.2008 10:40pm
Tucker (mail):
Orin, I understand that you think you're arguing what *is*, but I think Eugene has the better argument, and his *is* also happens to correspond to my *ought.

The fact that what you're arguing diverges from my *ought* is a fundamental problem with your argument, as noted by several other commentators above.

On a larger point, I know it's fun for law professors to dicker over little points of law, but it's also fun for us citizens to see them excercise some regard for the founding principles of the law of the land. The fact that the argument you're making turns those principles on their head should give you pause.

And you didn't answer the question about the Declaration; I'm presuming then that the answer is a no.
7.16.2008 10:59pm
Germanicus:
Clayton E. Cramer:

I think the two most likely reasons that you seem to be running into a lot of people who believe that self-defense is murder are that either people like saying things that make you mad, or you take people's statements out of context.

I find myself highly skeptical that you've run into more that one person who both honestly believes that, and is in a real position of governmental authority.

Regardless, we live in a democratic republic, and if someone were to pass a law banning self-defense, or if a judge decided to remove the common law defense, the problem would be relatively speedily fixed by either further legislative action, or an amendment to whatever constitution would be relevant.

Revolutions happen every election cycle in this country, which is why your last sentence doesn't scare me at all.
7.16.2008 11:03pm
Guest Here:
Some of the comments here are just unnecessary. Picking on Orin for his teaching ability? Ripping his claim of being in favor of restraint because he clerkd for Kennedy? Why not just stick the merits rather than bringing in the invective?

And the fact that Orin clerked for Kennedy doesn't mean he thinks like Kennedy any more than Judge Posner thinks like William Brennan. And that's not to pick on your Justice, Orin, as he can defend himself. I just think some of the comments on this topic are so far over the top, and I think it's really low for people to pick on a judge for whom someone clerked, as even if the person deserves to be criticized, you aren't going to be the person to do it (nor should you).
7.16.2008 11:55pm
OrinKerr:
Tucker,

I was an American citizen long before I was a law professor: for thirty years, in fact. And as an American citizen, I learned that the founding principle of our country was rule by the people, not rule by the elite judges and their dweeby academic fellow travelers. Read the Constitution and the Declaration: It's about WE THE PEOPLE, and the rights of self-governance, rejecting the rule of kings. Looks like you side with the elites against the people: You want the judges to tell the people what the law is, not the people. I side with the people against the elites, in the great tradition of the Declaration and the Constitution. Sorry you would reject those teachings in favor of rule by the kings in robes.

(Seriously, Tucker, I'm matching your over-the-top rhetoric to point out that we have a battle of two competing principles of our founding documents: you can pick one and imagine that the other doesn't exist, but that doesn't seem true to the documents themselves -- which you claim as your goal.)
7.17.2008 12:16am
MlR (mail):
If this is the thought process of a modern classical liberal/libertarian then, boy, are we're in trouble.
7.17.2008 12:49am
MlR (mail):
*are we*
7.17.2008 12:59am
OrinKerr:
MIR,

I'm curious: Do you think our classical liberal views are so unpersuasive that we can't convince people that they are correct in the regular political process? If so, why is that?
7.17.2008 1:22am
Ryan Waxx (mail):
Because a right to self defense with guns but no right to self defense in general offends most people trained in splitting legal hairs: that it to say most people with votes. People with votes affect the regular political process, or so some would have us believe.
7.17.2008 12:15pm
Ryan Waxx (mail):
er, most people NOT trained in splitting legal hairs...
7.17.2008 12:16pm
Ryan Waxx (mail):
The danger isn't that unenumerated rights exist per se, it's that they could ever be held to trump the enumerated rights, because that would open the floodgates to any manner and number of abuses.


I disagree. Whereas trumping enumerated rights would be a clear problem, unenumerated rights cause some mischief as well.

Specifically, the function of constitutional rights is to put certain policies above the reach of the normal political process - to seal them off from democratic processes, as it were. Sealing off entire discussions from public debate should not be taken lightly, and that is exacly what an accusation of judicial activism means... it means that you believe the judge is taking the actual constitution lightly.
7.17.2008 12:35pm
JosephSlater (mail):
Clayton:

Color me still entirely unconvinced re your fear that radical judges, absent a specifically *constitutional* right to self-defense, will get rid of the right to self defense generally.

Again, that doesn't go to the issue of whether the better legal interpretation would be that there is or isn't a specifically constitutional right. But I still don't see what the practical significance would be of finding one.
7.17.2008 12:46pm
OrinKerr:
Because a right to self defense with guns but no right to self defense in general offends most people not trained in splitting legal hairs: that it to say most people with votes. People with votes affect the regular political process, or so some would have us believe.

But of course I wouldn't vote for it: Who would? Again, I think we're confusing "is" and "ought." If Eugene says it's sunny in New York, and I'm in New York, look out the window and see it's raining, it's not answer to my claim that it's raining to say that most people prefer it to be sunny. I guess that's the problem with discussing constitutional law on a blog: People tend to think the constitution means whatever they want, so if you make a claim about existing law they think you're really making a claim about what you want the law to be. Unfortunate.
7.17.2008 1:47pm
Clayton E. Cramer (mail) (www):

I think the two most likely reasons that you seem to be running into a lot of people who believe that self-defense is murder are that either people like saying things that make you mad, or you take people's statements out of context.
Or I talk to a lot of fanatical gun control advocates--among the smallest minority groups in America, but relative to their numbers (perhaps 1-2% of the population), among the most powerful.
7.17.2008 1:49pm
Clayton E. Cramer (mail) (www):

Color me still entirely unconvinced re your fear that radical judges, absent a specifically *constitutional* right to self-defense, will get rid of the right to self defense generally.
I wouldn't consider it a highly likely prospect. But then again, when I was young, the prospect that radical judges would find a constitutional right to same-sex marriage seemed utterly bizarre as well. Really stupid ideas that would never survive a vote of the people can become very popular in academic circles, and thus, be implemented by judicial tyranny.


Again, that doesn't go to the issue of whether the better legal interpretation would be that there is or isn't a specifically constitutional right. But I still don't see what the practical significance would be of finding one.
In practice, probably little. The courts have ways to make even constitutional rights meaningless, if they care enough about it.
7.17.2008 1:52pm
Clayton E. Cramer (mail) (www):

I guess that's the problem with discussing constitutional law on a blog: People tend to think the constitution means whatever they want, so if you make a claim about existing law they think you're really making a claim about what you want the law to be.
I see Professor Kerr's point about this, and I'm not sure that I strongly disagree with him. The right of self-defense is clearly protected by the Ninth Amendment from federal interference, and we are somewhat dependent on state judges to not overrule the legislatures with respect to a right to self-defense. At the moment, this isn't likely to happen.

But at least part of why you are seeing this strong reaction is that most of us who have been active in gun rights have met plenty of people whose fanaticism against self-defense knows no bounds--and we've watched these crazies (many of them academics, of course) exert enormous influence over the political process.
7.17.2008 1:56pm