Heller and Self-Defense: In his post below, David Kopel writes:
District of Columbia v. Heller clearly establishes self-defense (not just gun ownership for self-defense) as a constitutional right. In light of Heller, what are some cases from state courts or lower federal courts which might have to be reversed or modified? I am thinking particularly of cases which describe self-defense as a government-granted privilege, for which fewer due process and other protections are available than for a "right." I am not looking for gun regulation cases, but rather for cases about self-defense in general.
David, could you explain why you think Heller "clearly establishes self-defense (not just gun ownership for self-defense) as a constitutional right"? Off the top of my head, I tend to disagree with this claim about the scope of Heller. The fact that the Constitution protects a constitutional right to do X when it serves interest Y does not mean that there is a constitutional right to serve interest Y unrelated to X. I'm curious, what passage in Heller do you have in mind that suggests differently?
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A Constitutional Right to Self-Defense?

Orin's and David Kopel's posts below discuss whether Heller recognized a constitutional right to self-defense. I'm inclined to say the answer is yes, for the following reasons:

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?

2. Heller often talks of a "right to self-defense" in contexts that suggest it is of constitutional statute, e.g., "That of the nine state constitutional protections for the right to bear arms enacted 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 generation conceived of the right."

3. I suppose that a right to keep and bear arms in self-defense could coexist with a regime that allowed people only a right to self-defense using arms, and that banned unarmed self-defense, or self-defense with weapons that might not qualify as "arms" for Second Amendment purposes. But that wouldn't make a lot of sense: Why would you have a right to defend yourself — lethally, if necessary — using the most lethal weapons, and not using less lethal means? Sometimes the legal answer to some questions is "because that's the way we've always done things, even if you think that's illogical," but that answer can't work here, because tradition is on the side of a right to self-defense using whatever means come to hand.

4. But can an opinion by Justice Scalia, no fan of unenumerated rights, be read as recognizing such a right? Well, it does seem to read that way on its face; and beyond that, Justice Scalia has signalled an openness both to unenumerated rights when they have been broadly recognized for hundreds of years, and to this right in particular. See Montana v. Egelhoff, 518 U.S. 37, 56 (1996) (four-Justice plurality authored by Justice Scalia) (suggesting that "the right to have a jury consider self-defense evidence" may be "fundamental" and supported by the "historical record"; such a right would make little sense if self-defense could be abolished as a defense).

5. At least some lower court judges — including some Reagan and Bush appointees — have shown a willingness to recognize a constitutional right to self-defense, even before the Second Amendment was recognized an individual right. Compare, e.g., Rowe v. DeBruyn, 17 F.3d 1047, 1054-56 (7th Cir. 1994) (Ripple, J., dissenting); id. at 1047 n.** (Cudahy, Flaum, Ripple, and Rovner, JJ., supporting rehearing en banc); DeCamp v. N.J. Dep’t of Corr., 902 A.2d 357, 361–62 (N.J. Super. Ct. App. Div. 2006) (endorsing Judge Ripple’s position and concluding that prisoners have self-defense rights, though without explicitly deciding whether those are federal constitutional rights or only state law rights); Isaac v. Engle, 646 F.2d 1129 (6th Cir. 1980) (en banc) (Merritt, J., dissenting), rev'd on other grounds, 456 U.S. 107 (1982) with Rowe, 17 F.3d at 1052-53 (7th Cir. 1994) (rejecting a constitutional right to self-defense generally, though the case involved only prisoner rights).

6. Likewise, at least two state courts have expressly read a state constitutional right to bear arms in self-defense provision as supporting a right to self-defense, at least with those arms (though for the reasons mentioned in item 2, I don't see how the right would be so limited. See McKellar v. Mason, 159 So. 2d 700, 702 (La. Ct. App. 1964); State ex rel. City of Princeton v. Buckner, 377 S.E.2d 139, 142–44 (W. Va. 1988).

7. If one counts all the states that have a right to bear arms for individual self-defense in the state constitution together with all the states that have a right to defend life expressly mentioned in the state constitution (and many state courts have indeed read such rights to defend life and property as securing constitutionally protected rights), one gets 44 of the 50 states — an important marker of the breadth of self-defense as a constitutionally secured right, and not just a common-law right. See generally Volokh, State Constitutional Rights of Self-Defense and Defense of Property, 11 Tex. Rev. of L. & Pol. 399 (2007).

None of these, standing alone, would be dispositive evidence that the courts are likely to recognize a constitutional right to self-defense in the wake of Heller. But put together, it seems to me they point strongly in that direction.

I should note, though, that this surely doesn't mean a constitutional right to use deadly force in all circumstances in which one is defending oneself. Historical limitations on this right — either broadly accepted, or at least accepted by a substantial minority of states — are likely to be upheld, especially if history and tradition is a large part of the basis for recognizing the right in the first place.

Thus, a rule that one can only use deadly force to defend oneself against threats of death, serious bodily injury, rape, kidnapping, and a few other very serious threats would likely be constitutional (even though many states also allow use of deadly force to defend against robbery and in some situations burglary). Likewise, the "duty to retreat," which is to say the principle that deadly force can only be used in self-defense if it's genuinely necessary, in that no safe avenue of retreat is available, is likely to be constitutional, too, because it has long been recognized in at least a substantial minority of states. There may be other examples as well. My point is that a federal constitutional right to self-defense likely exists, especially in the wake of Heller; but it is not unlimited, and is likely to be strongest precisely where there's a broad and deep common-law and statutory tradition of recognizing such a right.

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State Constitutional Rights of Self-Defense and Defense of Property:

The recent posts on whether there's a federal constitutional right of self-defense reminded me that very few people have paid attention to state constitutional analogs of the right (and the state constitutional right to defend property). Even experienced criminal law professors are often unaware, I think, of these rights, and there's very little literature on them. I thought, therefore, that I'd serialize my short and mostly descriptive article on State Constitutional Rights of Self-Defense and Defense of Property, 11 Tex. Rev. of L. & Pol. 399 (2007), which discusses (though doesn't deeply analyze) the rights and some of the cases decided under these rights.

If you're interested in citations for the various cases I mentions, just click on the link above and you'll see them; nearly all the applications of the rights that I mention are based on real cases discussing the state constitutional rights, and sometimes relying on them to limit government action. (I don't necessarily approve of all these applications, here I am just describing them.) I should also stress again that this article is about state constitutional rights; the federal constitutional analysis would be different, but for reasons I mentioned yesterday, I think there's a good case that such a federal constitution right exists, and the state constitutional tradition is relevant both to whether the right is firmly rooted in American law and to whether the right is sensibly judicially administrable.

Here's a slightly adapted version of the Introduction:

“[D]efending life and liberty” and “protecting property,” twenty-one state constitutions expressly tell us, are constitutional rights, generally “inalienable” though in some constitutions merely “inherent” or “natural” and God-given. A sample, from the California Constitution, which California courts have indeed found to secure a constitutional right to self-defense (emphasis added): “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Yet these constitutional rights are also almost entirely undiscussed ....

This silence may stem precisely from the broad acceptance of self-defense (and defense of property, at least with force that is not lethal to humans) as a criminal law doctrine. If states never deny people the right of self-defense, then there’s little occasion to explore constitutional limits on such denials.

Nonetheless, the constitutional status of self-defense [both under these state constitutional provisions and under state provisions that secure a right to keep and bear arms in individual self-defense] may matter; it may, for instance, influence courts’ judgments about:

  1. the boundaries of self-defense or defense-of-property doctrine, such as proposed self-defense exceptions to felon-in-possession statutes, or [rules about] when someone forfeits his right to self-defense against fellow criminals by engaging in a drug transaction;

  2. tort liability based on acts of self-defense or defense of property, such as when a store’s employee defends himself against a criminal and in the process inadvertently jeopardizes a third party;

  3. limits on private employers’ ability to fire employees for violent acts in the workplace when the acts were defensive;...

  4. the permissibility of bans on nonlethal weapons such as tasers (even setting aside the gun control debate).

And, more broadly, thinking about a right that many constitution-drafters found important enough to expressly secure may provide a broader perspective on American constitutionalism.

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State Constitutional Defense of Property Cases:

More from my article, which I introduced below:

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

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

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

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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.
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State Constitutional Self-Defense Cases:

Continuing with how the state constitutional right to self-defense has indeed been asserted -- sometimes successfully -- in various kinds of cases:

Criminal Law: A few cases have used state constitutional self-defense rights as guides for determining the scope of permissible self-defense in criminal cases. For instance, Ohio courts relied on the Ohio “defending life” provision to recognize an exception to bans on felons’ possession of firearms when the felon picks up a gun to stave off an imminent threat. Likewise, a California court relied on the California provision to clarify the longstanding principle that self-defense is unavailable when the defender is the one who started a deadly fight, a principle that has sometimes been imprecisely cast as an exception for cases of “mortal combat.” The jury had been instructed -- in the language of the applicable statute -- that “a person claiming [self-defense] if he were the assailant or engaged in mortal combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed”; the court concluded that this instruction was unconstitutional:

The right to defend life is one of the inalienable rights guaranteed by the constitution of the state. It is plain that if a person without fault is assailed by another and a mortal combat is precipitated, to require the former to attempt to withdraw before killing his adversary is to require the very thing that may prevent him from defending himself at all. The instruction is quite capable of the interpretation that although the defendant was without fault and the deceased was the aggressor, yet, if they were engaged in a mortal combat, it was the duty of the defendant to endeavor to withdraw before killing his adversary, although he had reason to believe, and did believe, his life was in imminent danger, and that to attempt to decline further struggle would increase his peril and probably enable his adversary to kill him. Such, of course, was not the intention of the learned trial judge in giving the instruction nor, probably, of the legislature in enacting the law, but it is capable of such interpretation and may have been so interpreted by the jury.
Similarly, a 1913 Colorado decision relied on the constitutional status of the right to defend one’s home in rejecting a husband’s claimed right to enter another’s house to bring back his estranged wife. Bailey’s sister had fled her abusive husband and came to stay at Bailey’s house. The husband came to Bailey’s house; Bailey demanded that he not come in; the husband came in, and Bailey shot him. Bailey was convicted of murder, in a trial at which the court instructed the jury that a husband
had a right to enter, in a lawful manner, the house ... of any person ... for the purpose of talking with and procuring his said wife to leave the said house, and had a right to use such reasonable force and persuasion as was necessary to induce her to ... come back to her home with him; and no person ... had a right to interfere with him in the exercise of such reasonable force or persuasion.
The Colorado Supreme Court reversed the conviction partly because this instruction “would destroy the moral, constitutional, statutory and common law right of defense of habitation.”

Civil Liability: One case, Kentucky Fried Chicken of California v. Superior Court, relied on a state constitutional right to defend property to hold that a shopkeeper’s agents have “no duty to comply with a robber’s unlawful demand for the surrender of property,” even when the robber is threatening a patron’s life. [There are also other opinions on this question, but they focus on nonconstitutional self-defense or defense-of-property principles rather than a constitutional guarantee.]

Employment Law: Several cases have relied on state constitutional self-defense rights in concluding that an employer may not fire employees for acting violently when the violence was committed in reasonable self-defense. In the course of deciding whether firing an employee for his actions constitutes tortuous “discharge against public policy,” courts often look to whether the state or federal constitutions protect that conduct against governmental retaliation. Such constitutional protection is not necessary or sufficient for the tort to be recognized, but it is relevant to the decision.

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The Right to Self-Defense Under State Constitutional Rights to Bear Arms:

More in my state constitutional self-defense rights series, from my short article on the subject, which was written before D.C.v. Heller. As before, the citations are available here.

Forty-four state constitutions, dating from 1776 to 1998, secure a right to keep and bear arms; 40 of these clearly secure an individual right to keep and bear arms in self-defense, though they may also secure a right to keep and bear arms for other purposes. Of these, 22 say this expressly, using provisions such as “every citizen has a right to bear arms in defense of himself and the state”; 17 have been read by courts as securing an individual right to keep and bear arms in self-defense; in one more state, Alaska, the expressly individual right was enacted in 1994, when the supporters of an individual right to bear arms treated the right as aimed at least in part at self-defense. Any “right [of a citizen] to bear arms in defense of himself” necessarily presupposes some right to use force, including lethal force, in self-defense. A few court decisions say so expressly, but the conclusion flows clearly from the text of the right-to-beararms provision.

The ten states that lack an individual right to bear arms aimed partly at self-defense are California, Iowa, Maryland, Minnesota, New Jersey, and New York, which have no right-to-bear-arms provision; Kansas and Massachusetts, in which the provisions have been read as securing only a collective right; and Hawaii and Virginia, in which the provisions do not expressly set forth the right as individual, and in which state courts have not decided whether the right is individual. Of these, California, Iowa, Massachusetts, and New Jersey expressly secure in their constitutions a right to defend life. Thus, 44 of the 50 state constitutions secure an individual right to self-defense in some way, 4 only through a right to defend life, 23 only through a right to bear arms in self-defense, and 17 through both.

It is not clear, though, that these provisions presuppose a right to use force in defense of property rather than in defense of life or in resistance to serious infringements on liberty, such as attempted rape or kidnapping. American law has generally not allowed the use of deadly force in defense of property (with some important exceptions), so a right to bear arms, which generally refers to deadly weapons, is more logically seen as focusing on self-defense rather than defense of property. In fact, only 8 of the right-to-bear-arms provisions mention defense of property, though 3 more mention defense of home but not of property generally.

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The Relevance of State Constitutional Rights to A Federal Constitutional Right: Eugene suggests that the existence of state constitutional rights is relevant to whether there is an analogous federal constitutional right because it sheds light on "whether the right is firmly rooted in American law." But I'm not sure how firmly rooting a right in state constitutions sheds light on whether the U.S. Constitution protects it.

  As a general rule, states are free to draft pretty much whatever constitutions they want (republican form of government questions aside). So a state can establish a constitutional right not to have one's labor treated as a commodity, see New York Constituion, Art. I, Sec. 17 ("Labor of human beings is not a commodity nor an article of commerce and shall never be so considered or construed."). Or it can establish a constitutional right to have English as the official language, see Arizona Constitution, Art. 28. Or it can establish a constitutional right to have contributory negligence treated as a question of fact for the jury, see Oklahoma Constitution, Section XXIII-6.

  State constitutions are chock full of such things. But as far as I know, these state constitutional rights don't generally change the meaning of the U.S. Constitution. Constitutional rights don't generally seep from one sovereign to another.

  Granted, state constitutional law can become relevant to federal constitutional law in some contexts. Take the Eighth Amendment (please!). Under the Supreme Court's current head-counting approach to the Eighth Amendment, state constitutional law could in fact influence whether a particular punishment amounts to "cruel and unusual punishment." But I don't see the relevance of that head-counting approach in the Second/Ninth/Fourteenth Amendments-and-Associated-Penumbras context that we are considering here.
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The Relevance of State Constitutional Rights to a Federal Constitutional Right:

Orin asks -- in the context of our discussion of self-defense rights -- why the existence of state constitutional rights would be relevant to whether there is an analogous federal constitutional right. Let me offer a few thoughts on this.

1. Tradition: To begin with, the Court has made clear that whether American law traditionally recognizes a right is relevant to the existence and scope of federal constitutional rights. Washington v. Glucksberg says the existence of such a tradition is necessary to recognizing an unenumerated right (and Glucksberg strikes me as still important despite Lawrence v. Texas's seeming departure from the Glucksberg approach). Richmond Newspapers v. Virginia relied heavily on tradition in recognizing a First Amendment right of access to criminal trials (even though generally the First Amendment has not been read as securing a right of access to government property or proceedings).

Justice Scalia has long argued that traditional recognition of restraints should generally lead courts to uphold those restraints as constitutional, even where the question relates to the scope of an enumerated constitutional right. Likewise, in D.C. v. Heller itself, Justice Scalia suggested that various traditionally accepted gun controls would be constitutional, and my sense was that he was chiefly relying on tradition in doing so.

More broadly, in our legal system tradition -- which is to say the accumulated judgments of important governmental decisionmakers -- influences court decisions. That's clearest when the tradition comes from judicial precedent (even of other courts), but it's also visible when courts rely on legislative decisions (again, even outside the jurisdiction) and other governmental judgments. There are, for instance, many tort law cases in which courts choosing a common-law tort rule consider as authority the decisions of other state legislatures as well as the decisions of other courts.

2. State Constitutional Rights: And if courts look to traditional recognition of a right as evidence that the right should be further constitutionalized, it seems to me that recognition in state constitutions should be an especially influential form of recognition. Now it need not always be so, for instance if the right is controversial, and some state constitutions recognize it but others deliberately reject it. (Consider, for instance, "right to work" amendments in some state constitutions, which bar private employers and unions from requiring that all employees pay union dues.) But in a case such as self-defense, there is no such controversy. Rather, all the states recognize the right as a matter of common law or statute, and on top of that 21 states recognize the right in a state constitution, plus 23 more recognize a state constitutional right to bear arms in self-defense.

The state constitutional evidence as to self-defense (whether the 44 states if you include the right to bear arms in self-defense states, or only the 21 that speak separately of the right to defend life) thus strikes me as evidence of a particularly strong and important tradition of protecting the right. The state constitutional evidence may be neither necessary or sufficient, but it seems an important piece of data nonetheless, and likely to be of influence on courts considering -- especially under the Glucksberg rule -- whether to recognize a federal constitutional right of self-defense.

3. Rebutting the Charge of Novelty: Finally, consider a question that Orin himself asked as to whether there's a constitutional right of self-defense:

If it's so obvious, why is it that no one has recognized the right before? Indeed, why is it that (as far as I know) no one litigated the issue in court in the last 220 years despite hundreds of thousands if not millions of opportunities?

For reasons related to what I said in item 1, these sorts of questions are very important in a fundamentally conservative legal system, or for that matter to anyone who takes a Burkean or Burkeanish approach to constitutional law. Remember, as the old saying goes, "law is the only field where 'that's an original idea' is a pejorative."

Well, the state constitutional cases, and the court decisions I cited in which the claim was raised by the parties and in which the court recognized a constitutional right, seems to answer Orin's objection: Some people, specifically at least 21 sets of state constitutional drafters, plus the judges who applied the provisions, did recognize the right. Some people litigated the provisions -- not often, perhaps because the right to self-defense has been so broadly accepted, but sometimes. It's true that most of the cases involved people raising specific state constitutional rights, but some spoke more broadly about constitutional principles that weren't mentioned in that particular state's constitutional text. And of course it makes sense that litigants in state court would raise state constitutional objections, especially before the massive federalization of constitutional criminal procedure that mostly took place in the 1960s.

So I hope the state constitutional evidence -- both the provisions and the many cases I cited that apply the provisions, including sometimes to trump contrary statutes (and sometimes to interpret statutes or common-law principles) -- does help respond to Orin's "If it's so obvious, why is it that no one has recognized the right before?" objection. One can still argue, of course, that for various reasons the federal courts should decline to recognize a federal constitutional right to self-defense. But I hope I've demonstrated that the state constitutional evidence is important here, even if not by itself conclusive.

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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.

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Three Difficulties With Using State Constitutional Rights to Infer Federal Constitutional Rights: I really appreciate Eugene's thoughtful response to my earlier questions about the relevance of state constitutional rights to whether courts should infer or an analogous federal constitutional right. At the same time, I'm not yet persuaded. Here's why:

  First, I have concerns with Eugene's approach from the standpoint of constitutional fidelity. I fear that looking to state constitutional provisions for new federal constitutional rights risks nullifying the decisions that Congress and the ratifying states actually made in amending the Constitution under Article V. As I understand it, the first Congress that debated and enacted the Bill of Rights looked largely to the provisions found in then-existing state constitutions for ideas. They selected the state constitutional amendments they wanted, and they declined to pick others.

  It seems to me that Eugene's proposed methodology risks effectively nullifying those decisions. It seems a bit like a constitutional version of "heads I win, tails you lose." Those state constitutional provisions actually adopted become part of the federal constitution, and those that weren't adopted become of the federal constitution anyway because they are "traditional" (at least if they are sufficiently common in the states). I would prefer a constitutional methodology that draws a sharper line between Constitutional amendments that were actually adopted and those that weren't.

  Second, I think Eugene's approach has troubling implications for federalism. If surveying state constitutions means that minority approaches tend to become constitutionally forbidden, you cause a shift in power from the states to the federal government. Diversity among the states is replaced by a one-size-fits-all rule from Washington, DC. This does happen in the Eighth Amendment setting, granted, but at least there's a textual hook: the word "unusual" suggests an inquiry into relative frequency, and state laws could help shed light on that. But here we seem to be interpreting no particular text at all, and the federalism concerns strike me as troublesome.

  Finally, the relevance of state constitutional practice seems at best modest under existing law. I agree with Eugene that legal history and tradition is often an important part of constitutional decisionmaking. But I think the role of state law in interpreting unenumerated rights is narrower than Eugene suggests. In the substantive due process context, for example, cases like Washington v. Glucksberg that have tried to root substantive due process in historical practice treat history as a necessary condition but certainly not a sufficient one. That is, newfangled rights don't get recognized, but the fact that a right has a long historical pedigree does not mean that it gets constitutionalized. Indeed, the same cases that try to root the doctrine in history warn that courts must be "reluctant" to expand substantive due process, "lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of this Court." Glucksberg.
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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.

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Can Lethal Self-Defense, Even Against Threats of Death, Serious Bodily Injury, Rape, and Kidnapping, Be Made a Crime?

The Seventh Circuit's Second Amendment non-incorporation decision so suggests:

Suppose a state were to decide that people cornered in their homes must surrender rather than fight back — in other words, that burglars should be deterred by the criminal law rather than self help. That decision would imply that no one is entitled to keep a handgun at home for self-defense, because self-defense would itself be a crime, and Heller concluded that the second amendment protects only the interests of law-abiding citizens. See United States v. Jackson, 555 F.3d 635 (7th Cir. 2009) (no constitutional right to have guns ready to hand when distributing illegal drugs).

Our hypothetical is not as far-fetched as it sounds. Self-defense is a common-law gloss on criminal statutes, a defense that many states have modified by requiring people to retreat when possible, and to use non-lethal force when retreat is not possible. An obligation to avoid lethal force in self-defense might imply an obligation to use pepper spray rather than handguns. A modification of the self-defense defense may or may not be in the best interest of public safety — whether guns deter or facilitate crime is an empirical question — but it is difficult to argue that legislative evaluation of which weapons are appropriate for use in self-defense has been out of the people’s hands since 1868.

Note that the court's argument isn't simply that lethal self-defense could be constitutionally limited to situations where it's genuinely necessary to protect against (say) death, serious injury, rape, or kidnapping. Rather, the argument must be that lethal self-defense could be constitutionally barred altogether. Otherwise the court's argument that "That decision would imply that no one is entitled to keep a handgun at home for self-defense, because self-defense would itself be a crime, and Heller concluded that the second amendment protects only the interests of law-abiding citizens" wouldn't work: The argument rests on the assumption that guns would be unusable to "law-abiding citizens" because "[lethal] self-defense would itself be a crime."

Likewise, the argument is not only that certain tools for lethal self-defense could be barred. That's the conclusion that the panel is trying to reach by arguing (I repeat) that lethal self-defense could itself be made a crime. (I read "self-defense" as meaning "lethal self-defense" in context.)

Now not all bad laws, even evil laws, are unconstitutional laws. And the lower court cases (all of them pre-Heller, except Brett, N. v. Community Unit School Dist. No. 303, 2009 WL 424546 (N.D. Ill. 2009)) are indeed split on whether there is a constitutional right to self-defense. But it seems to me that the case for such a right — including a right of lethal self-defense when necessary to prevent death, serious bodily injury, rape, and kidnapping — is very strong, even under the narrowest accepted test for recognizing constitutional rights (the Glucksberg test, from the decision that rejected a claimed right to assisted suicide). For a past on-blog debate on the subject, see this post chain.

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