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.