Do we have a constitutional right to use deadly force in defense of life (or defense against rape, kidnapping, serious bodily injury, and perhaps more)? Oddly enough, the matter hasn't been settled, and has been little studied by scholars. Fordham lawprof Nicholas Johnson has a forthcoming article on the subject, but unfortunately I couldn't find a draft of it on the Web; George Mason lawprof Nelson Lund has a response. There's a smattering of other material on it, but quite little. Here's my short section on the subject; for footnotes, see here:
Lethal self-defense is so broadly accepted that courts have rarely had occasion to confront grave restrictions on it, and thus haven’t squarely decided its constitutional status. Some lower court opinions have said that there is such a right, and a recent four-Justice plurality opinion -- authored by Justice Scalia, usually no friend of unenumerated constitutional rights -- suggested the same. And the Court’s unenumerated rights caselaw provides a strong case for recognizing a presumptive federal constitutional right to self-defense.
The right to self-defense is important to people’s lives, and firmly rooted in longstanding American tradition. Framing-era sources refer to it as a natural right. Blackstone wrote of the right to prevent “any forcible and atrocious crime,” even with lethal force, as “justifiable by the law of nature”; St. George Tucker, one of the leading American commentators of the first half of the nineteenth century, described “[t]he right of self defence” as “the first law of nature.”
The right has been as broadly accepted as the rights to bear and raise children and to live with one’s family members, and more broadly accepted than the right to an abortion or even the right to use contraceptives. Even if due process or the Ninth Amendment is interpreted as protecting only those rights that were recognized as important common-law rights in 1791 or 1868, self-defense would qualify. The right has never been absolute, but in this respect it is like most constitutional rights, enumerated or unenumerated.
The right is also secured by forty-four state constitutions. Twenty-one of these, dating back to the 1776 Pennsylvania Bill of Rights, expressly secure the right to “defend[] life.” Forty, dating from 1776 to 1998, secure a right to keep and bear arms in defense of self, which presupposes at least the traditional core of lethal self-defense.
Two court of appeals decisions have expressly rejected a constitutional right to lethal self-defense, but with little analysis, and in the course of upholding two rules that may well be constitutional even if the constitutional right is recognized: prison disciplinary rules categorically rejecting prisoner self-defense claims, and the rare state rules requiring defendants to prove self-defense by a preponderance of the evidence. Even if prisoners ought to lack a constitutional right to self-defense, this says little about the right outside prison -- prisoners are subject to far greater constraints on most of their constitutional rights than are nonprisoners. And even if defendants may be required to prove self-defense, one can have a constitutional right and yet bear the burden of proving that the conditions for its exercise are satisfied. When the Supreme Court upheld laws placing the burden of proving self-defense on the defendant, it did so without opining on whether there’s a constitutional right to self-defense.
Finally, if the Court concludes that the Second Amendment secures an individual right aimed partly at self-defense, thus endorsing the view expressed by Congress and by the White House Office of Legal Counsel, though only by a minority of federal circuit judges, then some right to self-defense might be inherently protected through the Second Amendment. But, as I argue above, a right to self-defense (though potentially limitable by gun control laws) should be recognized even without reliance on the Second Amendment.
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- Be Careful Believing Your Own Metaphors:...
- Medical Self-Defense and a Right of the Terminally Ill to Use Experimental Medical Treatments:
- The Constitutional Status of Lethal Self-Defense:
- Lethal Self-Defense, Medical Self-Defense, and Imminence:...
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You refer to what the framers of the Due Process Clause in the Fifth Amendment thought about self defense, but isn’t it just as important what they thought about due process? They understood the right to due process as a vital part of Magna Carta, and they did not view it as a guarantee of all sorts of other vital rights. James Madison, when he introduced the Due Process Clause in Congress:
As a policy matter, the law of self-defense is a classic case where the rights and liberties of one person come into conflict with the rights and liberties of another person. The laws of self-defense assure life and liberty to some people while TAKING AWAY life and liberty from other people. Is it safe to trust the judiciary with TAKING AWAY life and liberty even if a legislature is opposed to doing so?
Even if the people of a state explicitly grant their legislature power to legislate on the subject of self-defense, you really think that the US Constitution rips that power away from the people of every state, to the extent their legislature fails to conform with the courts' notions of self-defense?
And finally, I must take issue with your remarks about Justice Scalia having suggested the substantive constitutional right that you discuss. On the Ninth Amendment, Scalia has taken this position, in Troxel v. Granville:
On substantive due process, Scalia’s said in his opinions that it’s a “judicial usurpation” (and an “oxymoron”), and he’s said the same thing in countless speeches and debates. Regarding the case you cite, it involved a PROCEDURAL DUE PROCESS right to present evidence as to self-defense. Justice Scalia said that "the historical record may support" the proposition that "the right to have a jury consider self-defense evidence (unlike the right to have a jury consider evidence of voluntary intoxication), is fundamental." You's previously asked me how the right to have a jury consider self-defense evidence is “unlike" the right to have a jury consider evidence of voluntary intoxication. I answered that the source of the two rights may make them “unlike.” Also, the extent of the two rights may make them “unlike.” Do you have the slightest reason to think that’s not what Scalia meant?
And if you insist on the notion that Justice Sclaia has now endorsed SUBSTANTIVE DUE PROCESS, then what exactly do you think he’s endorsed? Do you think Scalia’s endorsed a substantive due process right to self-defense when the people who are attacking you are doing so moral culpability and there are a lot more of them than there are of you? Or that he’s endorsing a substantive due process right to self-defense when the people who are attacking you are doing so without moral culpability and your own negligence has placed you in that situation?
The question, I think, is whether a delegated power is 'given away' or merely shared with government. In many American jurisdictions, government wants to be the only user of lethal force and treats its use by individuals as, at the very least, a solecism.
Government seems to think of a delegated power as a plain gift, the giving of which alienates it from the giver. Why this is so is pretty obvious, at least to the cynic. However, the better model is that of a power of attorney, which enables someone else to act for you but doesn't affect your ability to act for yourself.
I know you asked EV, but I can't help wondering: Is it necessary to identify the better justification for a right? If due process give sufficient justification for the right, then we have the right. If the night amendment give sufficient, then we have the right. Why should we care which is more sufficient than the other?
If on, on the other hand, you think neither is sufficient, then the question of which is a less insufficient is unimportant.
And on the other hand (Good Samaritan law), can I be forced to have an obligation to do so?
Can I inflict harm (such as slapping a child's hand) to prevent greater harm to a second party?
I say yes to all three.
As far as being entailed by ordered liberty, the entire idea of having a police force is to defend us, citizens may act as police when the cops ain't around, and so there is some idea of self defense all the time. And it's just part of putting people together - why would I be a member of civilization if I was making myself subject to victimhood with no chance of defense? No, I think "holding your own" is implicit in citizenship.
And I am in Con Law 1 right now, as I'm sure is painfully obvious.
In any case, this is what I say in my draft about this:
I'm sorry to say, that the British seem to be stuck with our SJC's attitude on steroids, and the criminals over there seem to have figured it out; their violent crime rate is higher than ours and going up. Check out Joyce Malcom's book on the subject.
As for "defense of life and property," one needs to keep in mind that in a sense, property is life: the material possessions that one owns were (barring inheritance or winning the lottery) bought with money that one spent time out of one's life earning. One might even argue, that theft is a form of slavery, where one works involuntarily for the criminal in providing him with goods which he didn't earn by his own honest labor.
So, if the value is sufficiently significant, one should be justfied in using deadly force to defend one's property. In any event, the armed robbery or home invasion situation (one presumably doesn't have the right to shoot embezzlers) is fraught with peril as one doesn't know whether the criminal will kill to eliminate a witmess to his crime, or just for the thrill of it (which we have seen with some of the inner-city youth gangs).
Other contributors include Peter Squires, University of Brighton, England; Lance Stell, Davidson College and Carolinas Medical Center; Don B. Kates; John P. Cerone, New England School of Law; Renée Lerner, George Washington University Law School; Robert Weisberg, Stanford Law School; and Mary Stange, Skidmore College. The issue will also include a book review by VC contributor David Kopel.
Look for it some time in January. http://www.gmu.edu/org/jlep
Nevertheless, I find it obnoxious to say, in effect, "Well, maybe all of this is justified by the Ninth Amendment, and maybe by the Due Process Clause." The fact is, these two arguments are CONTRADICTORY. Either a right is among the enumerated rights or its among the "others" mentioned by the Ninth Amendment. You can't have it both ways. And if you aren't even confident enought to briefly mention (in a single sentence) which constitutional provision you think probably supports your argument, then you're basically admitting that there is no clear conflict between what a legislature says about self-defense and what the Constitution says.
At least let's have a sentence that tells which clause of the Constitution you purport to get this right from. One sentence, that's all.
Note also that the burden of proof to prove force used by a person was NOT lawful is on the state. "The State has the burden of proving beyond a reasonable doubt that the force used by the defendant was not lawful."
excerpted from a DUI defense page (for some reason, he covers self-defense law)
It is also well-settled law in the State of Washington that whenever a claim of self-defense has been raised by the evidence at trial, the State assumes the burden of proving beyond a reasonable doubt the absence of self-defense.
In State v. McCullum, 98 Wn. 2d 484 (1983) the Court held:
As stated previously, there need only be some evidence, admitted in the case from whatever source to raise the issue of self-defense . . . the jury then should be instructed that the State bears the burden of proving the absence of self-defense beyond a reasonable doubt. (at p. 500)
RCW 9A.16.110 Defending against violent crime—Reimbursement.
(1) No person in the state shall be placed in legal jeopardy of any kind whatsoever for protecting by any reasonable means necessary, himself or herself, his or her family, or his or her real or personal property, or for coming to the aid of another who is in imminent danger of or the victim of assault, robbery, kidnapping, arson, burglary, rape, murder, or any other violent crime as defined in RCW 9.94A.030.
(2) When a person charged with a crime listed in subsection (1) of this section is found not guilty by reason of self-defense, the state of Washington shall reimburse the defendant for all reasonable costs, including loss of time, legal fees incurred, and other expenses involved in his or her defense. This reimbursement is not an independent cause of action. To award these reasonable costs the trier of fact must find that the defendant's claim of self-defense was sustained by a preponderance of the evidence. If the trier of fact makes a determination of self-defense, the judge shall determine the amount of the award.
(3) Notwithstanding a finding that a defendant's actions were justified by self-defense, if the trier of fact also determines that the defendant was engaged in criminal conduct substantially related to the events giving rise to the charges filed against the defendant the judge may deny or reduce the amount of the award. In determining the amount of the award, the judge shall also consider the seriousness of the initial criminal conduct.
Nothing in this section precludes the legislature from using the sundry claims process to grant an award where none was granted under this section or to grant a higher award than one granted under this section.
(4) Whenever the issue of self-defense under this section is decided by a judge, the judge shall consider the same questions as must be answered in the special verdict under subsection (4) [(5)] of this section.
(5) Whenever the issue of self-defense under this section has been submitted to a jury, and the jury has found the defendant not guilty, the court shall instruct the jury to return a special verdict in substantially the following form:
answer yes or no
1. Was the finding of not guilty based upon self-defense? . . . . .
2. If your answer to question 1 is no, do not answer the remaining question.
3. If your answer to question 1 is yes, was the defendant:
a. Protecting himself or herself? . . . . .
b. Protecting his or her family? . . . . .
c. Protecting his or her property? . . . . .
d. Coming to the aid of another who was in imminent danger of a heinous crime? . . . . .
e. Coming to the aid of another who was the victim of a heinous crime? . . . . .
f. Engaged in criminal conduct substantially related to the events giving rise to the crime with which the defendant is charged? . . . . .
[1995 c 44 § 1; 1989 c 94 § 1; 1977 ex.s. c 206 § 8. Formerly RCW 9.01.200.]
Notes:
Let's say that while walking my dog down Sesame street I encounter the nefarious Elmo. His maniacal giggling at the least stimulation has always unnerved me, but the look he gives me would curdle milk. My dog whimpers and huddles behind my legs. Thankfully, this sinister freak of nature moves on to his rowhouse further down the street. But alas, my fears don't leave with him. I fear for my life, I fear for my dog's life and sexual innocence, and fear for my property, most notably my Hummel collection.
Now can I go and conspire with some doctor friends to have one of them secretly medically assault Elmo to incapacitate him? No, because there's no imminence, therefore there is no self-defense. In the time it took to conspire to commit felonies against him I could have called the police. Maybe from the facts I was more concerned with assaulting Elmo than protecting myself from him.
there MAY not be. there most certainly IS an absolute right to self defense under various STATE governments.
so, there can't be a law against it in those states (assuming creeping federalism doesn't blah blah blah)
all constitutional wrassling aside, there is no 'right to privacy' in the federal constitution. but i have it, cause i live in a state that has a very explicit right to privacy in my state constitution.
Some posters may be opposed to Substantive Due Process, but the mainstream of American Legal Thought is not and the SC is certainly not as evidenced by its continued use in one form or another for more than 100 years. And, I suspect, it will continue to be accepted Doctrine well into this Century. As long as that's the case, and as long as there continues to be an accepted substantive due process jurisprudence that the Court uses to analyze claims(see Washington v Gluckberg among others, an example that not every due process claim is accepted even by liberals), I see nothing wrong in saying that the Due Process Clasue is the best place to argue from.
Of the 70 or Justices to serve on the Court since the Due Process Clause began to receive substanive protection in the late 1800's, the vast majority of them have supported of its use and have accepted the Doctrine to some degree or another. Its use in the economic realm has fallen into disrepute(see Ferguson v Skrupa), but as far as its use in protecting individual rights is concerned, it is still rather strong.
Really Holmes, Black, Scalia and Thomas have been its most vocal opponents(and Thomas has suggested in Saenz v Roe that perhaps the P or I clause should displace the Court's sdp cases AND has UPHELD a substantive due process claim in Troxel v Granville, concurring with the liberals with Scalia dissenting).
To contrast, among the Justices thave have supported it are the two newest Justices(at least to some degree in their hearings), the remaining members of the Court, Brennan, Blackmun, Marshall, White, Stewart, Douglas, Warren, Fortas, Goldberg, Clark, Powell, most of the New Deal Court, the Four Horsemen, Brandeis, Cardozo, both Harlans, the list goes on. 4 Justices out of more than 60 is not exactly a groundswell.
The Supreme Court really hasn't dealt with the 2nd Amendment that extensively, although I think the historical record and the evidence supports that the 2nd Amendment IS an individual right and that the right to lethal self defense falls under the shield of the 2nd amendment as much as flag burning, obscenity, pornography, nude dancing and all the other things that have been held to be protected by the first amendment free speech clause have been held to do and as much banning gays from the bay scouts, banning women from private clubs and all the other things under the free association clause and animal sacrifice and drug use that have fallen under the free exercise clause are.
So, given the right case, and one that involves the use of arms, I think the 2nd amendment would be also be a logical place to ground a right to lethal self defense, and might be preferable for those who prefer more explicit textual anchors. The 5th circuit's Emerson opinion ventured in this direction, but unfortunately 2nd amendment case law really isn't that developed.
However, given the current state of the SC and SC jurisprudence, I think the Due Process Clause is most likely where it would be based. And I feel quite confident in saying that if such a case came before the SC asserting a due process claim to lethal self defense(at least in the classic circumstance), the SC would recognize it by at least a 6-3 margin, if not greater. I also feel confident in saying that any SC of the last 50 years would have recognized such a right by at least a 6-3 margin.
That said, as Eugene pointed out, 46 states or so ALREADY have lethal self defense statutes or provisions in their Constitutions. So, this issue is largely theoretical as the right has already been recognized by most states.
In sum, the Due Process Clause is clearly the most likely provision to ground the right in, but I think if the Court were to develop its 2nd Amendment jurisprudence, the 2nd would have a more natural textual connection. If the Court were to recognize the 2nd as protecting a right to use lethal self defense in certain situations, I think that would accord with the proper meaning of the 2nd.
Justice Holmes, a legal historian, traced the duty to retreat rule to an earlier period in English history, when the law did not even recognize a legal right of self-defense. [FN296] "The law has grown," Holmes wrote, "in the *319 direction of rules consistent with human nature." [FN297] This echoed Holmes's observation in The Common Law that "[t]he life of the law has not been logic: it has been experience." [FN298]
As a practical matter, "[d]etached reflection cannot be demanded in the presence of an uplifted knife." [FN299] And, also for practical reasons, declared Holmes, there is no duty to retreat from anywhere that a victim has a right to be. [FN300]
The Brown decision helps explain Holmes's reputation. In contrast to the Self-Defense Cases from 1893-96, the Holmes opinion is brief, even terse, [FN301] and powerfully written. The "detached reflection" sentence has become part of American folk wisdom, further influencing the tendency of the American mind against retreat. [FN302] Holmes was particularly proud of his opinion in Brown. [FN303]
Justice Holmes' opinion in Brown provided a link between the Supreme Court's two greatest civil libertarians of the late Nineteenth and early Twentieth Centuries. Holmes' opinion quoted Justice Harlan's opinion from Beard, and in private correspondence, Holmes wrote approvingly of the anti-retreat view of "old Harlan." [FN304]
Joining the Holmes opinion in Beard was a young new Justice, Louis Brandeis, who later wrote: "[w]e shall have lost something vital and beyond price on the day when the state denies us the right to resort to force.. . ." [FN305] "Holmes scholars have generally ignored Brown v. United States" because the opinion is seen as contradictory to Holmes's "supposedly more enlightened opinions" in free speech and other civil liberty cases. [FN306] Yet as Brown (the leading historian of American violence) recognizes, "to Holmes - as to so many other Americans - the right to stand one's ground and kill in self- defense was as great a civil liberty as, for example, freedom of speech." [FN307] In the early Twenty-First Century, *320 there are still many millions of Americans who cherish their freedom of speech, but who value much more deeply their right to use a firearm or other weapon to defend themselves and their families against predators like Hermes. Justices such as Harlan, Holmes, and Brandeis understood these Americans and this tendency of the American mind. To the extent that some modern judges do not, the law is delegitimated in the eyes of tens of millions of American citizens.
Likewise, if you take a look at Adamson v. California, you'll see that the Due Process Clause was viewed as purely procedural by Justices Murphy, Rutledge, Black, and Douglas.
And, in Ferguson v.Skrupa, Chief Justice Warren along with Justices Black, Douglas, Clark, Brennan, Stewart, White and Goldberg said (emphasis added):
Obviously, some of these justices later strayed from what they had said in Ferguson, but that doesn’t change the fact that they said it. Also, see this statement in University of Michigan v. Ewing that was made by a UNANIMOUS Court in 1985:
Even if all justices in U.S. history had unequivocally supported the doctrine (which they manifestly did not), that is insufficient reason for perpetuating it. The Supreme Court has often overturned its constitutional decisions when, upon further and deeper consideration, they were found to be erroneous and inconsistent with the clear original meaning of the Constitution.
It seems clear to me that a direct, literal reading of the Constitution makes lethal self-defense unlawful. This is a silly reading, but can we not imagine a world, perhaps 50 years hence, when such a reading would be considered seriously?
Chief Justice Marshall identified a bunch of other features of the Constitution that support the view that the Bill of Rights was only intended to restrain the federal government (see Barron v. Baltimore).
I also note that you ignored the 2nd Amendmnent basis for the right to lethal self defense that I brought up and acknowledged was more textually based than the due process clasue, which is more based on a common law/precedental traidtion.
If you really want to argue that Justices like Brennan, Marshall, Douglas, Stevens, Warren, Blackmun, Souter, O'Connor, oppose(d) substantive due process or thought it was illegitimate, go ahead. No serious court watcher would agree with you. Sure, they may have joined opinions like Skrupa and Ewing, but they all used substantive due process to recognize unenumerated rights as one time or another. Again, if one is to make a list of Justices that support(ed)substantive due process vs those who are opposed to it, the tally is much greater for the former.
It's ironic you hold out Douglas as someone opposed to Substantive Due Process. In the economic realm, yes, all the new dealers were. But in the individual righths realm? It's just not believable.
Also, Murphy and Rutledge went even FURTHER than Black in ADamson and stated that the due process clause protects not only ALL of the Bill of Rights(and there's more than just procedural right in there), but OTHER rights as well.
Murphy was one of the most liberal new dealers and recognized a federal equal protection clause a decade prior to Bolling v Sharpe.
Look, Andrew, we get the point. You constantly post here that you find substantive due process illegitimate and that it should be discarded. It hasn't been discarded, and it won't be discarded. It's application will fluctuate depending on the makeup of the Court. If Bush or the GOP get more appointments it'll probably decline somewhat. If Clinton or Obama get to replace Scalia and some of the older liberals, it'll prbably expand a little bit. But much like other judicially created doctrines like the rational basis test, heightened scrutiny, harmless error, substantial effects test, etc..., it's been developed over the years and it's here to stay. That must bother you, but I don't think most people have a problem with it.
In fact, if you're so opposed to it, why don't you start a movement to amend the Constitution to say that "the due process clause shall not be construed so as to protect unenumerated rights or as to have a substantive component". You're always talking about amending the Constitution. Go and practice what you preach. Until you do that, it's not going anywhere.
Quite frankly, your arguments against it are become rather boring. As Justice Scalia once described the Lemon test as the monster whose hand reaches up from the earth at the end of the movie, so is your argument against sunstantive due process.
It's gotten to the point where for just about any post on here, you can count 100% that you'll post that substantive due process is wrong and the Alexander Hamilton said it had a "precise technical import" to th NY Convention in 1787 when talking about a man being disenfranchised. We get the point. It's 2006, not 1787, and the Court doesn't decide cases based on what some guy said 220 years ago. Even Justice Thomas in Rector noted that the views of one guy, no matter how venerated, are dispositive or even worthy of acclaim.
In any event, I'm sure you'll continue to post your anti substantive due process screeds. You won't convince me, I won't convince you.
But if you're just going to continue to post that substantive due process it's illegitimate, I don't really see what you're adding to the discussion.
As David Ruffin once sang, "It's the same old song"
In such a case, constitutional adjudication necessarily involves not just history but judgment: judgment as to whether the government action under challenge is consonant with the concept of the protected freedom (in this case, the freedom of speech and of the press[or the right to bear arms in this case]) that existed when the constitutional protection was accorded...I would, however, want further evidence of common practice in 1868, since I doubt that the Fourteenth Amendment time warped the post-Civil War States back to the Revolution.)
But there is other indication, of the most weighty sort: the widespread and longstanding traditions of our people. Principles of liberty fundamental enough to have been embodied within constitutional guarantees are not readily erased from the Nation's consciousness. A governmental practice that has become general throughout the United States, and particularly one that has the validation of long, accepted usage, bears a strong presumption of constitutionality...Such a universal [n.3] and long established American legislative practice must be given precedence, I think, over historical and academic speculation regarding a restriction that assuredly does not go to the heart of free speech.[In opposition the anonymous electioneering, the right to self defense DOES have a long tradition]
It can be said that we ignored a tradition as old, and almost as widespread, in Texas v. Johnson, 491 U.S. 397 (1989), where we held unconstitutional a state law prohibiting desecration of the United States flag. See also United States v. Eichman, 496 U.S. 310 (1990). But those cases merely stand for the proposition that post-adoption tradition cannot alter the core meaning of a constitutional guarantee. As we said in Johnson, "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." 491 U. S., at 414. Prohibition of expression of contempt for the flag, whether by contemptuous words, see Street v. New York, 394 U.S. 576 (1969), or by burning the flag, came, we said, within that "bedrock principle." The law at issue here, by contrast, forbids the expression of no idea, but merely requires identification of the speaker when the idea is uttered in the electoral context. It is at the periphery of the First Amendment[What is the core meaning of the 2nd amendment? What is its underlying bedrock principle? Arguably, that the people have a right to bear arms in defense of their lives/property/family against both govt and other attack.][Ironically, Mr Free Speech Hugo Black upheld a ban on Flag Burning in Street, unlike Scalia in Johnson]
The foregoing analysis suffices to decide this case for me. Where the meaning of a constitutional text (such as "the freedom of speech") is unclear, the widespread and long accepted practices of the American people are the best indication of what fundamental beliefs it was intended to enshrine.
It's amazing that Scalia admits that the "freedom of speech" is unclear. What good is originalism if it can't even clarify the meaning of arguably the most important right in the Constitution? In any event, the widespread and long accepted practices of the American people show that the right to self defense is indeed a fundamental right either a)falls under teh 2nd Amendment's protection or b)the due process clause.
FWIW, I suspect Scalia would uphold a due process claim to self defense, as well as a 2nd amendment one. I doubt any case will ever reach the Court because as I said, something like 46 states already have self defense statutes or rights.
Did I mention that quote from Hamilton in this thread? Did I mention it in more than one other comment at this website? Incidentally, for your information, he made the statement in the New York legislature, and not at any convention.
As I said in a previous thread, I don't have any interest in responding to anything further you may have to say in this thread. Why your obnoxious presence is tolerate here, I know not.
By disputing the doctrine of "substantive due process" I'm doing nothing more ridiculous than justices Thomas and Scalia have done on many occasions. And they're right to do so. As for what you call my "screeds," I think we all know who posts one lengthy comment directly after another without waiting for responses.
The Due Process Clause was part of British law since the Fourteenth century. Starting in the twentieth century, federal courts in this country began to treat it as a guarantee of various substantive rights that aren't mentioned in the Constitution. You may want to discount six centuries of precedent, but I do not.
Your notion that a right to self defense may be embodied in the Second Amendment is mildly intriguing, and I might take it seriously if the person proposing it had any manners.