Senator Coburn’s exchange with Judge Sotomayor last week brought up the question whether there’s a constitutional right to self-defense. A few thoughts, from a post from a year ago:
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 stature, 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).
[UPDATE:] 5. Likewise, even the narrowest test that the Court has recently announced for recognizing unenumerated rights — the Washington v. Glucksberg test, which focuses on whether a right is important and broadly recognized throughout America and throughout American history — cuts in favor of recognizing a right to self-defense. Now if one rejects unenumerated rights under the Due Process Clause, under the Privileges or Immunities Clause, and under the Ninth Amendment, then one would just be left with the right’s being implied by the Second Amendment. (My sense is that nearly all Justices and nearly all major commentators accept some implicit rights, such as the right to expressive association that is seen as implicit in the First Amendment. The controversy arises when the implication gets too tenuous, and when the right is really being urged as an independently secured, albeit not expressly enumerated, right.)
6. 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