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The Natural Right of Self Defense.--

On the issue of a right of self defense discussed by my fellow Volokh Conspirators a few days ago, my take is somewhat different.

The framers believed that Americans possessed a natural right of self defense, which no government could abrogate.

Indeed, the purpose of entering into civil society was for protection. As Locke argued, when a person attacks you (and when civil authorities would be ineffective in such an emergency), you have a right to defend against — and even kill — your attacker because he is in a state of war with you. Since preservation is the purpose of society, no legislature has the power to legislate in direct contravention of that right of self preservation.

The right of self defense is among the most basic of the natural rights and was sometimes described in the 19th century as a "fundamental" right.

The framers would have thought it strange to believe that people could have no right of self defense, even after they enter into civil society. Remember, the right to life was considered inalienable. Some 17th and 18th century commentators considered self defense to be, not only the permissible thing to do, but the morally required thing to do (for the same reason that suicide was considered immoral).

The legal question for an originalist would be: Is this natural right of self defense protected by the US Constitution, or does the Ninth (and/or Tenth) Amendment merely reserve it to the people by making clear that the new Constitution did not abrogate such pre-existing rights?

Most of the 19th century discussions that I've read seem to assume that it is a natural right, but not a right protected by the US Constitution.

Under that view, I would think that a state would not be allowed to take away the right of self defense completely (even if no 2d Amendment arms were to be used), because no government could legitimately do so.

This passage from Gray vs. Combs, 30 Ky. 478 (App. 1832), presents the issue nicely, as well as shows that, even for many originalists, the proper scope of the natural right of self defense might change over time based on changed circumstances.

The right of necessary defence, in the protection of a man's person or property, is derived to him from the law of nature, and should never be unnecessarily restrained by municipal regulation. However proper it may be for every well ordered community to be tender of the public peace, and careful of the lives of its citizens, there can be neither policy or propriety in extending this tenderness and care so far as to protect the robber, the burglar and the nocturnal thief, by an unnecessary restraint of the honest citizen's natural right of self defence. Sir Matthew Hale, in speaking on this subject, says, "the right of self defence in these cases is founded in the law of nature, and is not, nor can be superceded by the law of society. Before societies were formed, the right of self defence resided in individuals, and since, in cases of necessity, individuals incorporated into society, cannot resort for protection to the law of society, that law with great propriety and strict justice considereth them as still, in that instance, under the protection of the law of nature."

Accordingly, the framers would have thought the right of self defense to be a natural right, perhaps more fundamental than any other. This natural right would have been contemplated (but not explicitly guaranteed) by the language of the 9th Amendment. Whether that is enough to makes it a "constitutional" right I couldn't say.

Perhaps other Volokh Conspirators or commenters can enlighten me on whether fundamental rights recognized as reserved to the people by the 9th Amendment are "constitutional" rights. I would say technically not, but I would also say that the US Constitution does not give governments the power to abrogate the right of self defense in a general way.

If one were to agree with me, would that make the right of self defense a "constitutional" right? Would a court in the US be duty bound to recognize such a right of self defense? Is every right that courts must recognize (by striking down statutes if necessary) "constitutional" by definition?

Other cases discussing or mentioning the natural right of self defense include Nunn v. Georgia, 1 Ga. 243 (1846); Missouri v. Quaite, 20 Mo. App. 405 (1886); Cockrum v. State, 24 Tex. 394 (1859); and Anderson v. Dunn, 19 U.S. 204 (1821) (argument of lawyer).

By the way, for an enterprising student, a good law review note topic (and title) might be "The Natural Right of Self Defense" or "The Fundamental Right of Self Defense." If a student reader of the VC does indeed choose that topic, it might be kind (and in your own best interests) to let other student readers know of your choice by clearly disclosing your intentions in the comments, so that others can decide if too many others are working on that angle in the impending self defense debate inspired by Heller.

For background, here is Locke on the "fundamental law of nature, man being to be preserved as much as possible" from his Second Treatise:

Sec. 6: . . . Every one, as he is bound to preserve himself, and not to quit his station willfully . . . .

Sec. 16. THE state of war is a state of enmity and destruction: and therefore declaring by word or action, not a passionate and hasty, but a sedate settled design upon another man's life, puts him in a state of war with him against whom he has declared such an intention, and so has exposed his life to the other's power to be taken away by him, or any one that joins with him in his defence, and espouses his quarrel; it being reasonable and just, I should have a right to destroy that which threatens me with destruction: for, by the fundamental law of nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred: and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion; because such men are not under the ties of the commonlaw of reason, have no other rule, but that of force and violence, and so may be treated as beasts of prey, those dangerous and noxious creatures, that will be sure to destroy him whenever he falls into their power. . . .

Sec. 19. . . . But force, or a declared design of force, upon the person of another, where there is no common superior on earth to appeal to for relief, is the state of war: and it is the want of such an appeal gives a man the right of war even against an aggressor, tho' he be in society and a fellow subject. Thus a thief, whom I cannot harm, but by appeal to the law, for having stolen all that I am worth, I may kill, when he sets on me to rob me but of my horse or coat; because the law, which was made for my preservation, where it cannot interpose to secure my life from present force, which, if lost, is capable of no reparation, permits me my own defence, and the right of war, a liberty to kill the aggressor, because the aggressor allows not time to appeal to our common judge, nor the decision of the law, for remedy in a case where the mischief may be irreparable. Want of a common judge with authority, puts all men in a state of nature: force without right, upon a man's person, makes a state of war, both where there is, and is not, a common judge.

Sec. 25. . . . men, being once born, have a right to their preservation . . . .

Sec. 128. For in the state of nature, to omit the liberty he has of innocent delights, a man has two powers.

The first is to do whatsoever he thinks fit for the preservation of himself, and others within the permission of the law of nature . . . .

Sec. 129. The first power, viz. of doing whatsoever he thought for the preservation of himself, and the rest of mankind, he gives up to be regulated by laws made by the society, so far forth as the preservation of himself, and the rest of that society shall require; which laws of the society in many things confine the liberty he had by the law of nature. . . .

Sec. 131. But though men, when they enter into society, give up the equality, liberty, and executive power they had in the state of nature, into the hands of the society, to be so far disposed of by the legislative, as the good of the society shall require; yet it being only with an intention in every one the better to preserve himself, his liberty and property; (for no rational creature can be supposed to change his condition with an intention to be worse) the power of the society, or legislative constituted by them, can never be supposed to extend farther, than the common good; but is obliged to secure every one's property, by providing against those three defects above mentioned, that made the state of nature so unsafe and uneasy. . . .

Sec. 134. THE great end of men's entering into society, being the enjoyment of their properties in peace and safety, and the great instrument and means of that being the laws established in that society; the first and fundamental positive law of all commonwealths is the establishing of the legislative power; as the first and fundamental natural law, which is to govern even the legislative itself, is the preservation of the society, and (as far as will consist with the public good) of every person in it.

Sec. 135. Though the legislative, whether placed in one or more, whether it be always in being, or only by intervals, though it be the supreme power in every common-wealth; yet,

First, It is not, nor can possibly be absolutely arbitrary over the lives and fortunes of the people: for it being but the joint power of every member of the society given up to that person, or assembly, which is legislator; it can be no more than those persons had in a state of nature before they entered into society, and gave up to the community: for no body can transfer to another more power than he has in himself; and no body has an absolute arbitrary power over himself, or over any other, to destroy his own life, or take away the life or property of another. A man, as has been proved, cannot subject himself to the arbitrary power of another; and having in the state of nature no arbitrary power over the life, liberty, or possession of another, but only so much as the law of nature gave him for the preservation of himself, and the rest of mankind; this is all he doth, or can give up to the common-wealth, and by it to the legislative power, so that the legislative can have no more than this. Their power, in the utmost bounds of it, is limited to the public good of the society. It is a power, that hath no other end but preservation, and therefore can never have a right to destroy, enslave, or designedly to impoverish the subjects. The obligations of the law of nature cease not in society, but only in many cases are drawn closer, and have by human laws known penalties annexed to them, to inforce their observation. Thus the law of nature stands as an eternal rule to all men, legislators as well as others. The rules that they make for other men's actions, must, as well as their own and other men's actions, be conformable to the law of nature, i.e. to the will of God, of which that is a declaration, and the fundamental law of nature being the preservation of mankind, no human sanction can be good, or valid against it.

The Unbeliever:
Some 17th and 18th century commentators considered self defense to be, not only the permissible thing to do, but the morally required thing to do (for the same reason that suicide was considered immoral).
I would say there is not a strict moral requirement, but there is definitely a rational argument to the effect. And the moral element necessarily comes into play when you include certain duties, such as a head of household's duty to protect the entire family, etc.

But the more important thing here is to note there is a decidedly immoral aspect to a state refusing to permit a person to defend himself, or to defend his family and friends.
7.18.2008 12:16pm
Snarky:

The framers believed that Americans possessed a natural right of self defense, which no government could abrogate.


How does the belief that slaves do not have a right to defend themselves fit into this?

Also, were the framers really homogeneous in their embrace of natural rights theories, or did they have a diversity of views? Given the religious diversity of the framers, it would be somewhat surprising if they all took precisely the same view of natural rights, which is, after all, a quasi-religious point of view.

Finally, shouldn't the analysis consider the views of the ratifiers, and not just the framers?
7.18.2008 12:45pm
Ohio State 3L:
I am currently reading the Federalist Society's 25th Anniversary book on Originalism, and there is an excellent panel discussion on unenumerated Constitutionally protected rights. In particular, the panelists are discussing judical enforceablity. It's an excellent, quick read (50ish pages) for good background on some theories of unenumerated rights generally. The difference in theories even among the originalist panelists provides a good, broad overview.
7.18.2008 12:47pm
Jon Rowe (mail) (www):
One big area of disagreement was when men entered civil society how much of their "natural liberty" they gave up in exchanged for their living in a civil society. Jefferson took a more libertarian view that men surrender hardly anything, that they enter civil society with their natural rights. Others argued for a more statist view that men surrender most of their natural liberty in exchange for living in civil society.
7.18.2008 12:52pm
Jon Rowe (mail) (www):

How does the belief that slaves do not have a right to defend themselves fit into this?


That's a good point. They tended to have cognitive dissonance on slavery. Many of them [Jefferson especially] knew that slavery violated the Declaration of Independence but had a hard time shaking off the institution.
7.18.2008 12:57pm
chiefbreakevryting:
How about this as an academic argument:

The key phrase of the Second Amendment is found in the preamble, but not the militia part. The key phrase is "necessary to the security of a free state." Why the adjective? The flip answer is that a state that bans the possession and use of arms by the "people" is not as free as one that does not. But there is a more mechanical aspect that supports a right to self defense.

A free state implies necessary restraints on the armed agencies of government that are vested with the authority to use force. This lessens the risk that such entities will become agents of tyranny, but also impedes their ability to defend the life and safety of individual citizens. Unless the people are willing to accommodate an oppressive police presence in the interest of public safety (airline security lines notwithstanding) the citizen of a free state (i.e. one in which government force is restrained in the interest of individual liberties) must be allowed the right and means to provide their own defense.

As an aside, I think that probing whether English common law protects a right of self defense is largely unhelpful. It is my understanding (quite possibly wrong, but...) that people living in England were subjects, and that the King owned some sort of interest in his subjects' lives beyond humanitarian or humanistic ones. Killing one of the King's subjects was almost as bad as killing one of the King's cows. People living under the U.S. Constitution however are not subjects in that sense, and are not afflicted by the disabilities imposed by monarchical abstractions.

To sum up: "Free" implies limitations on the state's ability to provide an arbitrary level of security, this necessarily implies a degree of self reliance on the part of the free citizen to protect his life in the setting of such limitations. If the Constitution prevents the policeman from looking in the trunk of the speeding hit man's car when he is on the way to kill you, the Constitution impliedly allows you to rectify that by dispatching the miscreant when the choice comes down to you or him.
7.18.2008 12:58pm
Jon Rowe (mail) (www):
This is a good article by Philip Hamburger on how the Founders understood natural rights, though it's a little "loaded" towards the traditional "natural law" reading of such rights.

Here is a post I did on the matter which tries to put things into perspective.

And slightly OT, but here is a recent post I did on the concept of "natural religion" which was quite popular during America's Founding.
7.18.2008 1:09pm
starrydeceases:
There seem to be many people in modern society who fail to comprehend the natural rights philosophical underpinnings of our system of government, or actively dismiss it as irrelevant because it does not align with their policy preferences.

How would it be possible to possess the unalienable rights to Life, Liberty, and the Pursuit of Happiness (or Property, if you prefer), without also possessing an unalienable right to defend the same?

While we are not specifically discussing Amendment II in this topic, I personally believe that a modern liberal democracy cannot exist in a stable fashion without the right to defend oneself with the tool that allows even the weakest among us to successfully defeat even the strongest among us, namely, the personal firearm. I believe it is no coincidence that the development of natural rights philosophy followed closely upon the development of personal firearms, and resulted in the Constitution of the United States of America, codifying, to quote Mr. Lincoln, "a new nation, conceive in liberty, and dedicated to the proposition that all men are created equal".

The sovereign power is, at its core, the right to use deadly force against another human being. Every time we exercise our franchise, we are in some way determining the circumstances under which we sanction the use of deadly force against another person. For modern men to repudiate the means by which the wisdom to select the circumstances under which such a sanction is justified is primarily acquired, that is to say, personal familiarity with the responsibility to wisely govern the power to end the life of another living being, is the greatest danger to society that can possibly be imagined, and no society so constituted can long endure without devolution into tyranny or lawlessness.

It is a grave thing to contemplate the destruction of another creature, but how can it be said that man has no right, or indeed the very responsibility, to determine of himself when such action is both necessary and justified, if we are to "secure blessings of Liberty to ourselves and our Posterity"?
7.18.2008 1:21pm
jim47:

If one were to agree with me, would that make the right of self defense a “constitutional” right?


An interesting question. I would say yes, if only for the fact that there isn't a better word. Perhaps meta-Constitutional right or pre-Constitutional right is better?

I think the lack of a separate term is due to the lack of consensus on whether things the founders thought were natural rights are part of the constitution and why. Are they binding because natural law is binding? Are they binding because aspects of the natural law were incorporated into the positive law of the constitution? Are they not binding at all because they are not positive law? Are they binding because they deeply rooted in the American tradition?
7.18.2008 1:30pm
J. F. Thomas (mail):
How would it be possible to possess the unalienable rights to Life, Liberty, and the Pursuit of Happiness (or Property, if you prefer)

So is your claim that the use of deadly force by civilians justifiable not only to defend one's life and liberty (which I doubt there is really much argument about except by the most ardent pacifist--when it comes to the defense of others, except close family members the arguments start), but also happiness (or property if you prefer). If you are saying that the natural right of self defense includes the right to kill someone for merely taking your stuff, then you are not a civilized person.
7.18.2008 1:36pm
J. F. Thomas (mail):
An interesting question. I would say yes, if only for the fact that there isn't a better word. Perhaps meta-Constitutional right or pre-Constitutional right is better?

It's amazing how quickly you people who deride judicial activism are so eager to find unenumerated rights in the Constitution. How come no one has mentioned that the right to self defense can be found in the penumbra of the bill of rights?
7.18.2008 1:39pm
Joe456 (mail):
I think if the founding father were told that the second amendment was being interpreted as securing the right to self defense, they would of followed up with asking which one was for gravity.

The second amendment is a attempt to guarantee the right of men to revolt against unjust government actions. The circuitous phasing reflects the inherit problem of phasing such a right, in a government document, and point to the contradiction that is explicit with in the concept of a "Bill of rights" enforced by the same government.
7.18.2008 1:46pm
Johnnie (mail) (www):
Looks like Locke endorses Joe Horn's actions.
7.18.2008 1:49pm
FWB (mail):
Excellent summation of natural law. The gift of life comes with a duty to preserve that gift. Thus when a life is threatened, the duty arises to protect that life (self-defense) even to the taking of another life recognizing that the one who initiated force was in violation of the basic principles of the life giver.

How about this, the primary definition of state:

"a set of circumstances or attributes characterizing a person or thing at a given time; way or form of being; condition"

"...militia being necessary for a free state (of being)..."



And pleae do not forget that the second clause is an absolute order, "shall not be infringed." It is not "may", it is not "will", it is "shall".
7.18.2008 1:52pm
starrydeceases:
Mr. Rowe:

I think it would be more useful to conceive of civil society as the state in which we exist, not when we agree to "trade" natural rights for civil rights, but that state in which we agree under which circumstances it is just to abrogate the natural rights of another. This, I believe, is especially useful when attempting to resolve such dilemmas as posed by Mr. Bork and Mr. Dershowitz in your commentary.
7.18.2008 1:53pm
SPO:
Doesn't this issue pop up in school fights where a child is punished for defending himself--something which I find absolutely appalling.
7.18.2008 1:54pm
MarkField (mail):
If you really want to explore the boundaries of the natural right to self-defense, you should be quoting Hobbes rather than Locke. Of course, Hobbes believed so strongly in the right that he argued that condemned prisoners had the right to resist the death penalty.

From an historical perspective, it would probably be difficult to sort out the various views of natural rights in society. Blackstone's view was that we gave up all our natural rights in return for protection. Any Founders who held this view (many, but not all) would not have considered the right of self-defense to encompass anything more than the law permitted (IIRC, the then-common law followed a strict rule of absolute necessity and the use of minimum force).

OTOH, I'm sure there were those who took the Hobbesian view, as well as many in between.

The problem with Constitutionalizing the right -- and I personally think it is one -- is precisely that history can't define the parameters of that right. This leaves it up to either judges or the legislature.
7.18.2008 1:55pm
J. F. Thomas (mail):
The second amendment is a attempt to guarantee the right of men to revolt against unjust government actions.

Funny that five years after passing the amendment, the Federal Government put together a militia equal to the size of the Revolutionary War army to put down just such a revolt.
7.18.2008 1:55pm
Joe456 (mail):
Funny that five years after passing the amendment, the Federal Government put together a militia equal to the size of the Revolutionary War army to put down just such a revolt.

The government disagreed with the assessment of it's actions.
7.18.2008 1:58pm
EconomicNeocon (mail):
Joe456:

Well said. The framers would not be proud that 200+ years later the document remains in place with so few amendments, barely one per decade. Thank you John Marshall.
7.18.2008 2:03pm
Kirk:
Jim,

Assuming the framers were correct in their belief:
The framers believed that Americans possessed a natural right of self defense, which no government could abrogate.
then certainly the answer to your question:
Would a court in the US be duty bound to recognize such a right of self defense?
is YES.

IANALP, so I ask out of total ignorance: how common is it for a court (at any level) to overturn a law on common-law or natural-rights grounds? I can't recall ever hearing of such a thing.
7.18.2008 2:07pm
starrydeceases:
Mr. Thomas:

Suppose the two of us came upon each other walking across some forsaken wasteland, such as Death Valley, and I found you in possession, whilst I lacked, a supply of water, and knowing that one or the other of us will perish without that water, I decided to steal your supply? Would you not then be justified in using deadly force to prevent me from accomplishing the deed, or even in employing deadly force to recover your Property, without which you will surely die, and which I have taken unjustly? Would you consider yourself more civilized than I if you chose death over violence?

Granted, that is an extreme and unlikely scenario, but not removed from the realm of possibility. The right of self-defense encompasses much more than "merely" the right to employ deadly force, and as in all things, the level of response must be gauged to the level of injury.

Do try not to use straw man arguments in the future, won't you?
7.18.2008 2:11pm
A. Zarkov (mail):
"If you are saying that the natural right of self defense includes the right to kill someone for merely taking your stuff, then you are not a civilized person."

Suppose someone uses or threatens to use lethal force to prevent a theft of property. Is that person necessarily uncivilized? After all, horse thieves were hanged at one time because horses were so important to the economic survival. It seems to me that if losing property can render someone destitute then he has every right to protect that property even with lethal force. Moreover you cannot escape the trade off we make all the time between material things and life. Almost no one would want to spend a million dollars to extend Charles Manson's life a month. Or even at all.
7.18.2008 2:18pm
Jon Rowe (mail) (www):
Starrydeceases,

Personally I'm sympathetic to the libertarian reading of natural rights -- the Jeffersonian view that holds we take our natural rights with us as we enter civil society. And one of those rights is an "unalienable" right to liberty it its broad and abstract sense. This of course, isn't the only defensible reading of the Founding &natural rights, but it is defensible. Randy Barnett has done the best scholarship on this point of view in my opinion.
7.18.2008 2:20pm
J. F. Thomas (mail):
Suppose the two of us came upon each other walking across some forsaken wasteland, such as Death Valley, and I found you in possession, whilst I lacked, a supply of water, and knowing that one or the other of us will perish without that water, I decided to steal your supply? Would you not then be justified in using deadly force to prevent me from accomplishing the deed, or even in employing deadly force to recover your Property, without which you will surely die, and which I have taken unjustly?

You should really write law school exams. Of course in such a situation I would be defending my life, because I would surely die without the water, not the water (because the water is a means to sustain life). So it is not the same thing.

A better example would be if we were walking in the desert and I stole your Rolex watch but left you with enough water to survive. Do you think you have the right to kill me just for taking your watch?
7.18.2008 2:22pm
starrydeceases:
Mr. Thomas:

Again, your arguments fall flat on their face. While those involved in the Whiskey Rebellion still possessed the right of revolution, this is no way implies that the government was under any obligation to allow such an insurrection to continue. History has plainly concluded that the Whiskey Rebellion was not a just rebellion, and I am as inclined to agree as any.
7.18.2008 2:23pm
starrydeceases:
Mr. Thomas:

I wear a Breitling, not a Rolex. ;)

Where did I ever impart upon you the idea that I would kill for want a wristwatch?
7.18.2008 2:26pm
J. F. Thomas (mail):
After all, horse thieves were hanged at one time because horses were so important to the economic survival.

But we don't now, and the death penalty is now almost definitively limited to cases of murder (and this country is almost alone among advanced democracies in imposing it at all).
7.18.2008 2:26pm
J. F. Thomas (mail):
Where did I ever impart upon you the idea that I would kill for want a wristwatch?

By your implication that the use of deadly force was justified in the defense of property. Your strawman fails because it really is a defense of life.
7.18.2008 2:28pm
starrydeceases:
Mr. Rowe:

I certainly agree with the Jeffersonian viewpoint, and with your assessment of Professor Barnett's scholarship. My response to your earlier comment was an attempt to show that it is possible to accept the Jeffersonian theory and yet still recognize a just governmental authority that deprives certain persons of the exercise of even unalienable rights.
7.18.2008 2:31pm
starrydeceases:
Mr. Thomas:

Actually, if you read more carefully, you will see that I assumed a right to defend Life, Liberty, and the Pursuit of Happiness, and added Property only because there is some disagreement as to the substitution of one concept for the other, which was clearly the original Lockean perspective. I did not necessarily say that deadly force is justified in defense of Property, per se, but I do believe that there are circumstances may exist under which such action is justified. As I later elaborated, the level of response must be gauged to the level of injury for there to be some reasonable relationship to Justice.
7.18.2008 2:44pm
JM Hanes:
What interests me about this issue is just how pivotal the Declaration of Independence is to our understanding of Constitutional intention. This is quite remarkable. While not a legislative act in any ordinary or formal sense, it is a sui generis, yet essential, vehicle for the stipulations upon which the edifice of American governance, as laid out in the Constitution, was ultimately built.

The issue of slavery, which quickly arises in any discussion of this sort, only highlights the Declaration's importance. The founders must have considered it something of a hat tip to the obvious, because the document itself languished in post-revolution obscurity for nearly a century. It was Lincoln, seeking a persuasive basis for abolition and not finding it in the Constitution, who ultimately enshrined the Declaration as what author Pauline Maier astutely posits as "American Scripture."

It is not surprising that most Americans list "life, liberty and the pursuit of happiness" as their quintessential rights, and that so many mistakenly believe those inalienable rights to be constitutional as well. Indeed, when legal scholars discuss the Lockean consensus which underpins the American experiment, the most convincing evidence derives from the Declaration, rather than the Constitution, does it not?

The "rule of law," of course, is not uniquely American, it is the uncodified rule of a handful of powerful ideas that is our greatest distinction -- a distinction which ironically poses the legal paradox which concerns you here.
7.18.2008 2:58pm
starrydeceases:
Mr. Thomas:

BTW, my desert scenario is not properly a "straw man", because a straw man argument is one which misrepresents the argument of the opponent, which I have not done. Of course, this is not to say that my scenario doesn't have faults of its own, but "straw man" it is not. I suppose its weakness as an exemplar rests upon the fact that it is exceedingly difficult to find a situation in which a taking of property that is separate from any direct relationship to the sustenance of life would justify employment of deadly force in response. I do recognize though, that one can reasonably take the position that my scenario, as I presented it, disregards the clear and direct causation, although in an odd way, that is exactly what I was attempting to demonstrate.
7.18.2008 3:01pm
starrydeceases:
Mr. Hanes:

I think a good argument can be made that Amendment IX clearly provides constitutional evidence for the pre-existence of natural rights, though only the Declaration makes any attempt to enumerate any of those rights.
7.18.2008 3:04pm
Mad Max:
If you are saying that the natural right of self defense includes the right to kill someone for merely taking your stuff, then you are not a civilized person.

Just the opposite is true. A society that does not permit you to defend your property - with deadly force, if necessary - is truly uncivilized.
7.18.2008 3:12pm
phants (mail):
J. F. Thomas

A better example would be if we were walking in the desert and I stole your Rolex watch but left you with enough water to survive. Do you think you have the right to kill me just for taking your watch?

Well, knowing that its possible to miss a destination or known source of water by only a few degrees of direction or by a few miles, if that watch was my only navigation tool (yes, you can navigate with the hands of a watch if you know how) then yes - not only would he/I be right to kill, I would, for my own survival, be obligated to do so...

Two points: This is a "time and place" arguement that simply cannot be resolved in law by anticipation of all circumstances and it is your own ignorance of the capabilities and importance of the tool (watch) that you are stealing that may someday be responsible for your death; Not my exercise of my rights...
7.18.2008 3:21pm
J. F. Thomas (mail):
Two points: This is a "time and place" arguement that simply cannot be resolved in law by anticipation of all circumstances

No, the point I was making, and I asked for clarification from starry from, was that most people would agree that taking another's life in defense of your life or liberty--or to defend the life and liberty of close family members--is not particularly controversial and well recognized under the Common Law. The controversy, and a position starry seemed to be advocating but backed off of, is whether taking another's life merely to defend property is justified. In general, in modern society, even the government does not claim that right. We can go back and forth making up hypotheticals about whether or not taking a particular piece of property is necessary to your survival and would thus justify the use of deadly force, but that is begging the question and merely line drawing.

My point is that deadly force in the mere protection of property is always illegitimate. Where the line is drawn and when it is reasonable for someone to believe that the person who is being deprived of their property is danger of suffering great bodily harm, death or deprivation of liberty is of course a difficult line to draw. But that is where I think the line must be drawn.
7.18.2008 4:07pm
EIDE_Interface (mail):
So says JF Thomas aka The Commie.
7.18.2008 4:32pm
MarkField (mail):

So says JF Thomas aka The Commie.


Wow, what a devastating comeback. I'm sure you convinced everybody with that one.
7.18.2008 4:53pm
Brian G (mail) (www):
I think one should have a duty to inquire into the motives of the person before they can just blow them away, and if the person says they are there for peaceful means and their gun is merely a paperweight, then you should not be allowed to kill them because you really don't know if they are being dishonest. You should be required to have absolute, irrefustable proof that what they claim is not true before acting on your cowboy instincts.

If someone says they are there to kill or seriously harm you, then you should be allowed to kill then but only if they stab you first or if they shoot the first bullet. You should be required to assume their motives are pure before pulling out the Glock.

Don't laugh, that's the liberals idea for the proper standard of American self-defense. Why shouldn't we apply it to individuals?
7.18.2008 4:55pm
Snarky:

So says JF Thomas aka The Commie.


Wow. You really won that argument!

Good job. I am now convinced you are right, and JF Thomas is wrong.

Nothing like a good bit of name-calling to put someone in there place, I always said.
7.18.2008 4:57pm
Perseus (mail):
The framers believed that Americans possessed a natural right of self defense, which no government could abrogate.

As I pointed out before, Federalist #28 specifically mentions the right: that original right of self-defense which is paramount to all positive forms of government. That the right is original and paramount to all forms government makes it both natural and unalienable.

Under Lockean doctrine, you never transfer your natural rights to government, but rather the executive power of the law of nature, which you temporarily re-assume when the civil authorities aren't around to protect you.
7.18.2008 5:29pm
Flash Gordon (mail):
While deadly force may not be used solely to defend property, surely a degree of force less than deadly may be used. No one is obligated to stand idly by while his property is stolen. The thief then makes the call, either to give up the booty or to escalate the matter into justifiable deadly force.

The reason horse thieves were hanged in the 19th century is that the theft of one's horse often left one in peril of death by dehydration and starvation. Shooting a thief in the back as he rode away on your horse was necessary to self preservation in the deserts of Arizona and Texas in the 1850's.

It must have been the same with camel thieves in the Arabian desert.

I wonder if the prevalence today in the minds of many people that deadly force is justified to defend property is somehow related to this experience.
7.18.2008 5:38pm
James Lindgren (mail):
According to an old story, a Texas judge was asked why he punished horse thieves more severely than those who committed homicide.

He replied:

"Because I never met a horse that DESERVED stealing."
7.18.2008 5:44pm
Flash Gordon (mail):
I found this quote from U.S. v. MOONEY, 497 F.3d 397 (4th Cir. 2007), in which the defendant claimed self defense justification to a charge of felon in possession of a firearm, to be interesting:



It is well recognized that Congress enacts criminal laws
against the preexistence of the common law. See United
States v. Bailey, 444 U.S. 394, 415 n. 11, 100 S.Ct. 624,
62 L.Ed.2d 575 (1980) (stating that Congress enacts criminal
laws "against the background of Anglo-Saxon common law"). And it
is equally clear that firmly entrenched in the common law is the
justification defense. See, e.g., William Blackstone,
1 Commentaries *130 (explaining that "the life and
limbs of a man are of such high value, in the estimation of the
law of England, that it pardons even homicide if committed
se defendendo (in self defense); or in order to preserve
them"); United States v. Gilbert, 430 F.3d 215, 219
(4th Cir.2005). In Bailey, the Supreme Court held that
common law defenses of duress and necessity were generally
available in prosecutions under 18 U.S.C. § 751(a) for
escape from federal prison, even though the statutory language
provided no such suggestion. 444 U.S. at 415, 100 S.Ct. 624. The
proper conclusion from Bailey is that "Congress'
failure to provide specifically for a common law defense in
drafting a criminal statute does not necessarily preclude a
defendant charged with violating the statute from relying on
such a defense." United States v. Panter,
688 F.2d 268, 271 (5th Cir.1982). This conclusion is not surprising,
however, inasmuch as statutes rarely enumerate the defenses to
the crimes they describe, and defenses continue to remain
doctrines of the common law, the background against which
Congress enacts federal crimes. See also Dixon v. United
States, ___ U.S. ___, 126 S.Ct. at 2445, 165 L.Ed.2d 299
(assuming that the common law defense of duress would be
available to charges under 18 U.S.C. § 922(g) (the same
offense at issue here)).

To recognize, in particular, the justification defense to
the felon-in-possession offense is not remarkable. "Common
sense dictates that if a previously convicted felon is attacked
by someone with a gun, the felon should not be found guilty for
taking the gun away from the attacker in order to save his
life." United States v. Singleton, 902 F.2d 471, 472
(6th Cir.1990).

Every circuit to have considered justification as a defense
to a prosecution under 18 U.S.C. § 922(g) has recognized
it. See United States v. Leahy, 473 F.3d 401, 409
(1st Cir.2007); United States v. Deleveaux,
205 F.3d 1292, 1297 (11th Cir.2000); United States v. Gomez,
92 F.3d 770, 774-75 (9th Cir.1996); United States v.
Paolello, 951 F.2d 537, 540-11 (3d Cir.1991);
Singleton, 902 F.2d at 472 (6th Cir.1990); United
States v. Vigil, 743 F.2d 751, 756 (10th Cir.1984);
Panter, 688 F.2d at 271 (5th Cir.1982); United
States v. Agard, 605 F.2d 665, 667 (2d Cir.1979).

If self defense is not a Constitutionally protected natural right, it must come close.
7.18.2008 6:44pm
Curious Passerby (mail):
This make a lot more sense than comparing self defense to the right to an abortion which emanates from a penumbra.
7.18.2008 6:54pm
AKD:

My point is that deadly force in the mere protection of property is always illegitimate.


Only a person living in a society absolutely glutted with unessential, replaceable possessions (i.e. "stuff") could make such a broad statement.
7.18.2008 7:35pm
Kirk:
J.F.,
My point is that deadly force in the mere protection of property is always illegitimate.
Aren't you from LA? I understand there may be some differences there, but here in WA at least, the law recognizes the use of force (though not deadly force) is justifiable in order to protect property (see RCW 9A.16.020 (3).)

So let's say you come up to me in the desert and attempt to remove my watch from my arm. I'd be fully justified under WA law in repelling your attempt by using non-lethal force. If you then relent, fine. But what if instead you redouble your efforts? Eventually I'm going to be at risk of serious bodily harm, and then will be justified in using deadly force against you.
7.18.2008 7:40pm
Clayton E. Cramer (mail) (www):



The framers believed that Americans possessed a natural right of self defense, which no government could abrogate.



How does the belief that slaves do not have a right to defend themselves fit into this?
Oddly enough, at least for the first few years after the Revolution, courts sometimes did recognize this. There's a 1791 Fairfax County case where a slave who killed his master claimed self-defense, since the master was about to castrate him. The court returned a not guilty verdict, holding even a slave retained some natural rights, including the right to self-defense. This is discussed in Letitia Woods Brown, Free Negroes in the District of Columbia, 1790-1846, 51-52.

American slave theory was all over the map, sometimes asserting that a master owned only a slave's labor, but not his body. In practice, the inability of blacks to testify against whites pretty rendered the theory irrelevant.
7.18.2008 7:49pm
Clayton E. Cramer (mail) (www):

If you are saying that the natural right of self defense includes the right to kill someone for merely taking your stuff, then you are not a civilized person.
I would certainly agree that killing a person over the theft of a wristwatch (especially something as stupidly ostentatious as a Rolex) would be wrong. But there are several issues that you, as usual, missing, because you have grown up rich and privileged:

1. Liberals object to use of deadly force to resist robbery, with the same excuse that you are making. Yet it is the robber, by threatening you with injury or worse who has demonstrated that property matters more than life, and thereby forfeits any claim to his own life for that reason.

2. Would you agree that if someone dragged you off the street to spend the rest of your life as a slave, that you had a right to resist with deadly force? (Now we'll see how liberal you really are.) How about ten years of servitude? How about one year of forced labor for the benefit of someone else?

3. If you agree that you have a right to use deadly force to resist a year of slavery, then what happens when someone steals something from you that will take a year of your labor to replace? For some people, a car will take a year of their labor (at least), to replace. If someone burns down my house, even after the insurance reimburses me for a big chunk of it, there will be several years worth of my labor spent on replacing it. The person who steals or destroys my property is thereby enslaving me--and I have the right to use deadly force to prevent him from enslaving me.

Now, since you obviously grew up rich, you haven't the faintest idea what the consequences of theft are. I want you to start thinking about what those of us who didn't grow up overprivileged and liberal already know.
7.18.2008 7:58pm
Jon Rowe (mail) (www):

Under Lockean doctrine, you never transfer your natural rights to government, but rather the executive power of the law of nature, which you temporarily re-assume when the civil authorities aren't around to protect you.


The word "never" is quite strong given that the Founders themselves differed on what is surrendered &what is retained when leaving the "state of nature" and entering "civil society." Under the more conservative [collectivist] approach to natural rights, ala Walter Berns and Philip Hamburger, man surrenders most of his Lockean natural rights to government for "civil rights" that are created almost entirely by the democratic process. Under this statist, conservative understanding of Founding history government could suppress the right to bear arms just as government could suppress "speech" in the form of after the fact censorship.

Under the more libertarian, Jeffersonian view of natural rights that holds men surrender virtually none of their natural rights when entering civil society [other than that which is necessary to enhance their natural liberty by establishing a police force to more effectively tackle violent crime and fraud] the rights to speak freely without fear of censorship, bear arms, and do all sorts of things under the sun which might fall under the broad rubric of "natural liberty" remain intact when entering civil society.
7.18.2008 8:09pm
A. Zarkov (mail):
J.f. Thomas:

But we don't now, and the death penalty is now almost definitively limited to cases of murder (and this country is almost alone among advanced democracies in imposing it at all).

What's an "advanced democracy." Can you give us an example, and why it's advanced? Europe and Canada are somewhat democratic, but they lack freedom of speech. In most if not all of these countries one can face criminal charges under laws against racism and xenophobia for merely expressing an opinion or stating a fact. One problem is, at least in Sweden, Muslims can make extreme derogatory statements against Jews and not face prosecution. A double standard to be sure. How are such countries more "advanced democracies" than the US?
7.18.2008 8:37pm
A. Zarkov (mail):
J.F. Thomas:

A robbery is a theft from persons using force or the threat of force. So why wouldn't someone be justified in using deadly force to resist a robbery, any robbery, even one for his Rolex? Full disclosure: I don't own a Rolex or any other expensive watch. If fact I don't even wear a watch.
7.18.2008 8:44pm
phants (mail):
J. F. Thomas: You begin with:

"No, the point I was making.." and state that: "We can go back and forth making up hypotheticals"

Well, I understood your point though I'm not sure you understood mine. I'm also glad that you gave up on the hypothetical exchange, as you specified a Rolex, the property in which I keep my accumulated survival funds. I think it's due to Starry's recognition of the difficulty to "... separate from any direct relationship to the sustenance of life..."

To say it directly, The thief does not percieve and cannot asses the value, utiility or dependence I have upon the item being stolen. And more to the point, he does not care if it is my survival item or not. I know only that he percieves value as he takes that instead of my handkerchief, which can also be a survival item.

You condescend to "mere property" and assume that we should all value the life of the thief to be greater. The reluctance to defend "mere property" only preserves the thief to another time, when he will again, without care or concern, take the survival item from another.

I say again: The life of the thief may be forfiet because of his own ignorance of the owner's percieved and true value of that property, not because he has legal permission to rely upon and force the owner into a "value of life arguement."
7.18.2008 8:46pm
Smokey:
If you are saying that the natural right of self defense includes the right to kill someone for merely taking your stuff, then you are not a civilized person.
Clayton Cramer beat me to making the central point: when someone steals my property ["takes my stuff"], which I have traded part of my life working to acquire, they are stealing part of my life which I can not get back.

I wouldn't kill someone for stealing a pack of gum I just bought. But if there were no other alternative, there comes a point where I would take whatever action was necessary to reclaim that portion of my life that was being taken.

Anyone who wouldn't would make a fine slave.
7.18.2008 8:55pm
Jon Rowe (mail) (www):
Something else folks should keep in mind is how what J. Lindgren quoted above from Locke arguably isn't consistent with and certainly doesn't derive from traditional biblical Christianity. The Lockean notion that man's primary duty is self preservation is not at all a biblical or traditional Christian idea which puts self-sacrifice above self-interest (no matter how "enlightened").

As it were, Locke was not a traditional biblical Christian. Rather, he was a closet Arian heretic.
7.18.2008 8:58pm
JM Hanes:
starrydeceases:

"I suppose its weakness as an exemplar rests upon the fact that it is exceedingly difficult to find a situation in which a taking of property that is separate from any direct relationship to the sustenance of life would justify employment of deadly force in response."

Well, you could make a start by examining the nature of the grievances listed in the Declaration.

"I think a good argument can be made that Amendment IX clearly provides constitutional evidence for the pre-existence of natural rights, though only the Declaration makes any attempt to enumerate any of those rights."

The fact that IX presupposes extra-constitutional rights is not in dispute, is it? Indeed, IX formally stipulates the existence of such rights, tipping its hat to a fundamental problem, without resolving it. The argument begins at the question of what those "others retained by the people" were assumed to be, and why. The Declaration is really the only official, contemporary consensus document we've got which explicitly addresses inalienable rights and suggests the basis upon which such rights might actually be said to supercede any constitutional measure. That short list appears to be about as far as general agreement has ever extended.

Amendment IX is the well from which penumbras are necessarily drawn. While that shadowy formulation may be the object of unadulterated scorn in many quarters, the conundrum and the challenges that unenumerated rights pose in system designed to assess constitutionality alone are considerable -- and have been recognized from the start. To understand the true implications of that problem, simply imagine how different the course of law and adjudication might have been without the Bill of Rights. In practice, we rely upon such amendments as if they represent an exclusive catalogue, when by the very terms contained therein, they do not. Logically speaking, I should be able to assert a right -- a right to privacy, for example -- and the burden of establishing a basis for denying that right would fall upon my government or my adversaries. That's really not how our system actually works though, is it?
7.18.2008 9:11pm
Perseus (mail):
The word "never" is quite strong given that the Founders themselves differed on what is surrendered &what is retained when leaving the "state of nature" and entering "civil society."

I certainly grant that the views of every Founder did not necessarily strictly follow Lockean doctrine.

As for the interpretation of Walter Berns, although I agree that civil rights are natural rights made political and more concrete, I take issue with his East Coast Straussian/Hobbesian gloss on exchanging natural for civil rights.
7.18.2008 9:37pm
MarkField (mail):

As for the interpretation of Walter Berns, although I agree that civil rights are natural rights made political and more concrete, I take issue with his East Coast Straussian/Hobbesian gloss on exchanging natural for civil rights.


While I'm in agreement with you, let's not forget that Blackstone too adopted the position that we exchanged natural for civil rights. So did many in the founding era.
7.18.2008 9:52pm
J. Aldridge:

The legal question for an originalist would be: Is this natural right of self defense protected by the US Constitution, or does the Ninth (and/or Tenth) Amendment merely reserve it to the people by making clear that the new Constitution did not abrogate such pre-existing rights?

Easy question to answer: US Constitution does not protect natural rights because it is a political compact only.

Next question!
7.18.2008 11:49pm
GaryC (mail):

chiefbreakevryting:

As an aside, I think that probing whether English common law protects a right of self defense is largely unhelpful. It is my understanding (quite possibly wrong, but...) that people living in England were subjects, and that the King owned some sort of interest in his subjects' lives beyond humanitarian or humanistic ones. Killing one of the King's subjects was almost as bad as killing one of the King's cows. People living under the U.S. Constitution however are not subjects in that sense, and are not afflicted by the disabilities imposed by monarchical abstractions.


If I remember correctly, killing one of the King's deer was a capital offense, unless one were a member of the nobility and granted a license to hunt.
7.18.2008 11:50pm
Clayton E. Cramer (mail) (www):

If I remember correctly, killing one of the King's deer was a capital offense, unless one were a member of the nobility and granted a license to hunt.
I think so was adultery with the King's mistress, because it was deemed treason. (Why? Because you could pass on syphilis to the Royal Personage?) This is part of why the Constitution narrowly defines treason.
7.19.2008 2:29am
James Lindgren (mail):
Several of you have cited Hamburger in this thread. His Yale and Columbia articles are the best things written so far on natural rights and natural law in the framers era.

Philip was kind enough to read my above post in my living room last night (before I posted it this morning); he made one substantive suggestion, which I was smart enough to accept. Then we watched South Park.

His big book on the origins of "judicial review" (though he doesn't use that anachronistic term) will be appearing before the end of the year from Harvard Press. It has some stunning stuff in it.
7.19.2008 5:02am
Perseus (mail):
let's not forget that Blackstone too adopted the position that we exchanged natural for civil rights

It's not altogether clear to me that Blackstone is that far from Locke, but I also certainly agree that various Founders had different takes on what the exchange entailed.
7.19.2008 7:04am
John Pate (www):
Seems to me there's considerable amount of argument at cross-purposes going on here. It's more starkly revealed in the position of English common law traditions versus European Code Napoleon: does the government hold the right to legitimate use of force and delegation of it (Code Napoleon) or do the people (English/American common law)? The fundamental point, surely, is that. Socialists in America (who, apparently, get annoyed when you out them as Socialists) are asserting that the government reserves the right to use and delegation of force and, in reality, do not recognise a right to individual self-defence - all rights are collective under socialism, essentially are entitlements rather than rights. The fundamental problem is, it seems to me, that the two sides are arguing from different premises and compromise isn't possible. I don't buy this theory that you have to give up rights to live in civil society - the whole point is to secure your rights (anyway, that's the point according to the preamble to the Constitution).
7.19.2008 8:27am
Public_Defender (mail):
When you translate "natural law" from conservative-speak into liberal-speak, do you get "penumbra"?
7.19.2008 9:18am
Richard Aubrey (mail):
J.F. Okay. I'm not civilized. Next question...?

I believe I referred not so long ago to a case in Detroit where a man in the 'hood, newly employed but at a distance from his employment, fired out the window, killing a thief who was about to steal his clunker/lifeline to employment and a better life.
I do not recall whether there were no charges or whether the prosecutor (and J.F.) were terribly disappointed.

I have no idea if J.F. is a commie, but his views seem to gradually reduce the agency of the lower orders.
7.19.2008 11:50am
Ranger (mail):
One thing that I find fascinating in this entire discussion is a total neglect of military law. As a young infantry officer I was taught that one of the fundamental precepts of military law and the law of war in general is that no soldier is ever compelled to give up the right of self defense.

The classic example of this is the hypothetical situation of an aircraft mistakenly attacking friendly ground forces. The ground forces are fully within their military legal rights to fire on the aircraft to defend themselves from attack. If the ground troops shoot down the aircraft and kill the pilot that is an unfortunate incident of fratricide, but the troops' actions are fully legally protected even if they are fully aware that the aircraft is friendly (the shorthand for this rule is, “friendly fire isn’t”).

Given the extremely dangerous conditions of the battlefield, the right of self defense for troops goes to the perception of threat. A real world example of this is the case of the US M1 tank that killed members of a Spanish news crew in Iraq during the battle of Baghdad. The TV crew were filming the fighting from a balcony in a hotel that had been identified as a place where journalists were living and operating from. The unit the tank was part of had been receiving indirect fire and spotted a group of people on a balcony with direct line of sight to the unit, optical equipment, and who appeared to be communicating with people outside the building. The tank crew perceived them as an enemy observation post for calling in indirect fire and engaged them, killing some of the journalists. Spanish prosecutors attempted to bring charges against the tank crew for murder, arguing that the men had been notified that the specific building they fired at was being used by journalists, and therefore the decision to open fire on it was reckless. A Spanish judge just recently dismissed the case because (as I under stand the ruling, which may be in error as I don't read Spanish and I am relying on second hand accounts) even if the prosecutors could prove everything in their case, it still would not rise over the bar as sufficient to overcome the soldiers' defense that they perceived the men they fired on as a threat because of their activity and the circumstances and therefore were entitled to engage it as an act of self defense in combat.

I bring this up because the soldier's right of self defense is not granted to him under law as an agent of the state, but as an individual to protect their own life. I am neither a lawyer nor an historian of military law, but it seems to me that if someone wanted to research the legal foundations for a right to self defense, taking a look at an established body of law that already clearly recognizes that right would be a good place to start.

Just a thought
7.19.2008 12:49pm
Ranger (mail):
I think so was adultery with the King's mistress, because it was deemed treason. (Why? Because you could pass on syphilis to the Royal Personage?) This is part of why the Constitution narrowly defines treason.

I believe that has to do with questions of political stability. In a system where claims to govern are based on direct relationship to the Monarch, a mistress can produce a legal heir. If you are sleeping with the King's mistress you are a potential future threat to the claims of the woman's child. If the child is already the Monarch when that information becomes known, you've just provided a cause for rebellion or civil war. The act is treason because you could, by your acts in the present, causing big problems for the state in the future.
7.19.2008 1:02pm
MarkField (mail):

It's not altogether clear to me that Blackstone is that far from Locke


From Blackstone (pp. 48-9):

"And this is what we mean by the original contract of society ... that the community should guard the rights of each individual member, and that (in return for this protection) each individual should submit to the laws of the community; without which submission of all it was impossible that protection could be certainly extended to any."

There are some nuances to this, and Blackstone hedges his position, but I think it's safe to say that he (like most upper class Britons of the time) believed that subjects had to obey the laws passed by the sovereign Parliament. It was a very different view than we had here (thank God for us).
7.19.2008 2:06pm
Doc W (mail):
To paraphrase an earlier post: Anyone who would deny the right of people to defend their property is uncivilized.

If a thief was jailed for 6 months for stealing my car, and if I shot him to death as he left prison because I didn't think the sentence sufficient, THAT would be killing someone just because he took my stuff. If someone comes onto my property uninvited while I'm home and starts stealing my goods, he sets up a confrontation. In response to this aggression, I have the right to stop the robbery, and I don't have to take the chance that employing insufficient force would leave me vulnerable to attack by a concealed weapon, or by a stronger opponent or martial arts expert who could beak my neck.

On what basis might I be enjoined from using what I take to be appropriate force? The robber's right to life? Not necessarily. Criminals committing crimes forfeit rights. If they don't want to get shot, they can give up robbery.

Where to draw a line on the use of force in defense of property doesn't look like a trivial matter to me. But it is far from the case that lethal or potentially lethal force is always impermissible.
7.19.2008 3:32pm
Jon Rowe (mail) (www):
Can't wait for Hamburger's book. Even if I sometimes disagree with his analysis and conclusions, he's one of the best at digging through the primary sources of the Founding era.

Let me make a prediction though on what his research will uncover: that the Constitution does not support Marbury v. Madison, that the judiciary never was supposed to have this power of "judicial review" or judicial veto over the other branches of government.
7.19.2008 4:44pm
jim47:
J F Thomas, quoting me, wrote:


An interesting question. I would say yes, if only for the fact that there isn't a better word. Perhaps meta-Constitutional right or pre-Constitutional right is better?


It's amazing how quickly you people who deride judicial activism are so eager to find unenumerated rights in the Constitution.


A devastating critique except for the fact that I do not deride judicial activism, and I know of no serious thinker who argues for unenumerated rights while making cheap accusations of judicial activism.

As my post makes clear, I see legitimate disagreement over a difficult issue; in order to label something as judicial activism I would have to see not simply an incorrect conclusion, but bad faith as the cause of that conclusion. I have not seen sufficient evidence of bad faith on the current court ever to have accused one of its members of judicial activism.
7.19.2008 5:27pm
Perseus (mail):
There are some nuances to this

Indeed there are. But suffice it to say for the topic of the post, Blackstone recognizes self-defense as an absolute, natural right of individuals.
7.19.2008 7:04pm
Jon Rowe (mail) (www):
Aha. Hamburger's book is based on this article. Looks like I spoke too soon. I'm reading it and it looks like it's presenting a very nuanced argument on judicial review.
7.20.2008 1:33am
James Lindgren (mail):
Blackstone, though often cited for many things by the framers, was not representative on certain issues.

Blackstone was a Tory who opposed the Am. Revolution. He was much more compliant to civil power and much less sympathetic to the right of revolution than most American leaders. Locke, on the other hand, was one of the first major theorists to endorse the right of revolution (which as I recall Hobbes and Pufendorf did not).
7.20.2008 4:32am
James Lindgren (mail):
Jon Rowe:

Yep, but instead of an article of 40 pages, it's now a book of about 700 or so pages.
7.20.2008 4:34am
James Lindgren (mail):
Jon Rowe:

Your guess on Hamburger's argument is dead wrong.

Hamburger has been the primary researcher finding that Marbury was not a major break with the past, that it has many, many precursors.

Judicial duty requires judges at all levels of the system to strike down inferior laws inconsistent with superior laws.
7.20.2008 4:39am
Jon Rowe (mail) (www):
I'm looking forward to reading and blogging about it.

In reading the article what I found interesting was his argument that under the new system judges were not allowed to use natural law (or at least natural law alone) to nullify acts of legislation as they had done previously.

When he gets to that part in his book, I'll be reading very carefully.
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