The Natural Right of Self-Defense: Heller's Lesson to the World

The Syracuse Law Review is putting together a symposium issue on the Heller decision. My article for the symposium examines the implications of Heller's constitutionalization of the natural law right of self-defense.

The article has benefitted from the VC discussion of self-defense in Heller by Orin Kerr, Eugene Volokh, and Jim Lindgren. Due to the symposium's desire for short articles, I was not able to explore all the interesting issues raised by the discussion.

Jim had suggested that the topic would make a good subject for student Notes, and I certainly agree. My Article doesn't come close to exhausting the topic. For example, in the course of research, I found the 1874 treatise "Select American Cases on the Law of Self-Defence." (Available on Google Books.) There is a vast amount of material therein that is worth exploring. Moreover, my string cite (note 15) on American cases describing self-defense as a "natural right" does not even include cases using the term "inherent right" instead.

BTW, I did not steal the title from Jim's suggestion. I already had it in my draft, as a sequel to my BYU J. Pub. L. article "The Human Right of Self-Defense."

In footnote 15, you will find a 1832 Kentucky case which I did find thanks to Jim. As you'll see, I still haven't solved the mystery of how the Kentucky court attributed to Matthew Hale a quote which actually appears to come from Michael Foster. I'll send a free copy of the forthcoming book Supreme Court Gun Cases, vol. 2, to the first person who can provide a definitive solution.

a knight (mail) (www):
Professor Kopel, here's two references that predate 1847, which may aid in answering your question. Hopefully, Chicago Manual of Style bibliographies are acceptable. These were culled from a shallow 1st cursory search dive at Goggle Books. presently I am otherwise occupied, and have not the time to expend on researching this.

Foster, Michael, and Michael Dodson. 1809. A report of some proceedings on the commission for the trial of the rebels in the year 1746, in the county of Surry; and of other crown cases: to which are added discourses upon a few branches of the crown law. London: W. Clarke and Sons.

Google Books - Page 273 - (cited in right-margin as Kel. 128, 129)


Ritchie, Thomas, and Virginia. Circuit Superior Court (Chesterfield Co.). A full report, embracing all the evidence and arguments in the case of the Commonwealth of Virginia vs. Thomas Ritchie, Jr. : tried at the spring term of the Chesterfield Superior Court, 1846 : to which is added, an appendix, shewing the action of the court in relation to the other parties, Messrs. P.J. Archer, W. Greenhow, and William Scott, connected with the said case. New-York: Burgess, Stringer and Co., 1846.

Page 84 (left column, near bottom)
7.24.2008 12:48am
a knight (mail) (www):
add.: if this does seem to offer insight, but not a definitive answer, drop a bit of data in response, and I'll go for a bit deeper dive into available web sources.

[DK: You're on the right trail. The 1809 edition of Foster is one way that his quote probably entered American legal consciousness? But why did the 1832 Kentucky court attribute the Foster quote to Hale? I fear that the answer is nowhere on the web, since I've run the quote through various searches, including Google Books, and have found no treatise before 1847 that conflates Hale and Foster.]
7.24.2008 12:52am
Doc W (mail):
Thanks for your good work, Dave. I also saw your article in America's First Freedom.

Sunday's Pittsburgh Post Gazette featured an editorial by Ray Schoenke of the so-called American Hunters and Shooters Association telling some really outrageous lies about the NRA. I imagine it was printed in other papers around the country too. My last letter to the editor was less than 3 months ago so I can't reply. I wonder if there is any organized effort to generate responses to anti-gun editorials? Some sort of a network? If there were, say, half a dozen letter writers in each large metropolitan area who could be called on, they could be fed relevant information in response to anti-gun editorials, to help with writing something accurate and to the point for publication in the letters column.

Sorry if I've partially hijacked the thread. Just an idea.
7.24.2008 2:51am
a knight (mail) (www):
Professor Kopel,

I may be able to provide a different perspective, because my background is not law, other than a period of recreational reading related to the Supreme Court case law between the mid 80s and end of the 90s, as well as a friendship which developed with the Prof. in my first undergrad ConLaw course back in the mid 70s. (he also taught fine polySci history courses), and who is still in infrequent contact.

I am a paleogeek, who has recently taken up traversing through Google Books, and to a lesser degree, other online scanned books resources. I located several complete collections of Early American Political Historical collections, including the complete Jefferson, M.E. (all 20 vol, and have attempted to find the best scans of the available vols.) Soon, I plan to start publishing the list on the noted website for this user-pseudo, but then again, I have many plans that I intend to implement soon...

Searching Google Books is still a bit of arcane art, in comparison to its web search functions. This is partly because the OCR text scans are less than perfect. Google does not seem to have eliminated the fuzzing caused by hyphenated words either. There are a few other differences which I have only inferred, and am not ready to publicly state at this time. Thoroughly searching Google Books requires a bit of creativity with the search strings, including use of the booleans made available by Google.

I found the fore-cited texts with just a best-guess partial quote of the cited text. Different records may be exposed using other partial strings, as well as a choice of unlikely keyword sets chosen from the citation. It is a somewhat arduous task, that many who do not have pre internet search engine experience searching through textual DB's will have a difficult figuring out without direction.

I'll give it a few more passes as time allows, but I've not the background to understand the old English Common law citations easily. My Blackstone is weak, to say the least...

Also, my orignal reason for visiting and posting at this site was because I firmly believe that habeas corpus and due process of law are universal human rights, and that our rights are not gifted to us by the state, but are instead pre-eminent and pre-existent to it. I also have a very Thomas Payne attitude about where this leads:
"An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself."

Thomas Paine, "Dissertations on First Principles of Government", 1795

My intense style of composition is often misconstrued as combative (although sometimes that would be a proper description). I'm telling you this as a fair warning, should I come hammering in on a different thread of yours in the future.
7.24.2008 3:45am
a knight (mail) (www):
Here's a quick historical dig, which may provide a bit of relevant data:

1792 KY Statehood
1799: Kentucky Resolution
1832: Andrew Jackson was elected President. State went majority for native son, Clay, but was divided between Jackson and Clay.
1818: KY State charter of Banks, which quickly failed. Original State Supreme Court declared the state legislative remedy in response to the bank failures to be unconstitutional. Legislature responded by reconstituting the State Supreme court

The judiciary remake looks to have happened in 1825. From the Univ. of Louisville, Louis D. Brandeis School of Law:
William T. Barry, 1825
James Haggin, 1825
John Trimble, 1825 - (name feels familiar to me, but I do not know why)
Benjamin W. Patton, 1825 - (I believe that George Patton was a KY native-don't know if there is a relationship)
Rezin Davidge, 1825
7.24.2008 5:42am
sdchap00 (mail):
Assuming that a pre-1832 English edition of Hale included a note discussing Foster similar to that of the 1847 Hale, is it possible that the misattribution is just a bit of sloppiness on the part of the Reporter of the court's decisions or the editor of the Hale edition?

If you will notice, the quote in Gray v. Combs that is attributed to Hale is not correct even as it appears in Hale (at least the 1847 Hale): it omits much of the language (e.g., "civil" and "for defence and preservation"), and really looks more like a paraphrase. This could be an error by the Reporter (J.J. Marshall). It's not as though the court was unaware of Foster, since it goes on to quote the work on page 483 of Gray, after a second extended discussion of Hale. As I've learned from some recent reading, early American case reports were riddled with errors, even after official reporters were appointed. This resulted from a variety of causes, including the frequent issuance only of oral opinions by the judge, which could easily account for the error in Gray. However, I am not sure if the Kentucky Court of Appeals was issuing written opinions in 1832.

Additionally, as it appears in the 1847 Hale, the language from Foster is not designated as a quotation, nor does it appear to be an exact quotation from Foster (at least as it appears in the 1809 Foster linked to by a knight). Instead, the language appears in a discussion of Foster, at least as framed by the beginning of the paragraph ("Foster divides...."). In this light, it's easy to understand why either the Reporter or the court attributed the language in Gray to Hale rather than Foster.

References to the Foster quotation above rely on the Google Books link in a knight's first post above; references to the 1847 Hale are to the text at this link
7.24.2008 12:36pm
doug in Colorado (mail):
Rather than our elite Supreme Court liberal justices looking to European or other foreign law for precedent and guidance, the rest of the world should be looking to US Law, especially in this kind of Constitutional matter and the rights of individuals.
7.24.2008 5:52pm
a knight (mail) (www):
Two notes:

Here's an instance of bad OCR scan, as I previously noted:

A note to Foster's Crown Law, 273, 274. is scanned into text as Foster's Ctown Law, 273, 274.

Preston, Thomas. 1824. The trial of the British soldiers [T. Preston and others] of the 29th.

Google Books - on Page 93

-- -- --

Apologies if you have already noted this citation to an Alabama case:

There can be negligence in the setting of deadly traps without warning (in this case, a spring gun). If the trap kills a persons intending to commit a felony, it is justified homicide. "A man's place of pro hac vice his dwelling..."

Scheuerman v. Scharfenberg, 163 Ala. 337, 50 South. 335.

Freeman, A. C. 1888. The American state reports, containing the cases of general value and authority subsequent to those contained in the "American decisions" and the "American reports" decided in the courts of last resort of the several states. San Francisco, Calif: Bancroft-Whitney Co.

Google Books - beginning page 74
7.24.2008 10:31pm
a knight (mail) (www):
Google +1 - for a prompt gracious reply:

Thank you for your email. I have noted this OCR issue on this page, and will shortly pass this information along to the rest of our team for review.

I appreciate your taking the time to write us, and I encourage you to continue to let us know how we can improve Google Book Search. As this is still a young program, new features are under consideration and your feedback is very helpful.


The Google Book Search Team
7.25.2008 9:42pm