The Volokh Conspiracy

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.