With regards to whether there can be a constitutional right to use a gun for self defense without there being a constitutional right to self-defense, I don't think that this necessarily follows. For example, you can have a constitutional right to use a gun for all legal activities, and it may be the case that self-defense is a legal activity. Under this logic, which I think was really the logic in Heller, if the government banned self-defense, or the use of lethal force in self-defense, it could then become illegal to use a gun for self-defense. What the government could not do is make it so that you may only use a knife for self-defense, or that you can only use a shotgun, but not a pistol for self-defense.

I don't need no stinkin' constitution to give me the right to defend myself. God gave me that right when I was born.

Justice Scalia may oppose "judicially-crafted unenumerated rights", but I think the argument that is being made here in favor of a "right to self-defense" is that the right is not judicially crafted -- instead, it need only be a judicially-recognized unenumerated right.

Is there a generally recognized right to walk across one's yard? If so, was it enumerated in the Constitution? If not, what is its origin? The answers to those questions should usefully inform the debate on whether there is a right to self-defense.

I think part of the problem is that many people, like Bpbatista above, believe in natural rights, with the right to self-defense near the top of the list, while others are either legal realists who define a right as simply anything you can get a court to enforce, or people who think that natural rights are moral rights, but that doesn't necessarily mean the law will take them into consideration without unless they've been legally codified.

I tend to fall into the last category. I think everyone has a moral right to defend themselves against imminent mortal danger, to take the simplest case, but it's only a legal right if the courts will recognize it, and that's why the discussion Professor Kerr has started here is so important. I'm not sure whether the court recognized a constitutional right to general self-defense in Heller, but even if it has, the related jurisprudence is still too immature to say what exactly that right entails.

Both natural law and legal realism are respected traditions in jurisprudence, but members of each school will look at this question very differently.

"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."

No. The theme is that you are a big government liberal who believes that the individual is just a cell of the state, and has only those rights and liberties expressly granted by the state, which has the right to cancel any or all of them for the greater good.

I think EV's suggestion that Scalia's plurality opinion in the Montana case may signal that he's open to viewing self-defense as a fundamental right is a reach. All Scalia says in the Montana case is that one possible way to read a prior decision, which the plurality argued did not control on the immediate issue of voluntary intoxication instructions, is to read it as implying a right to self-defense. That's about as useful in ascertaining Scalia's opinion on an issue as some footnote in a committee report is in ascertaining the intent of Congress.

The Heller opinion provides alot more ammo for that claim, if I was making EV's case, I think I'd stick to that. I find it rhetorically advantageous to prune the weakest arguments, rather than use a shotgun-style approach that throws every argument out there in the hope that one sticks its target. Perhaps arguments that practicing lawyers consider a real stretch, and more likely to be a detriment to the case by their weak example, are more useful in academia.

In any event, I suppose if EV's argument prevailed, would we back to allowing apring guns and other hilarious-but-deadly booby traps, provided they were protecting an actual person in the residence at the time they are set?

MarfaLights,

You say that Heller "basically" says this; can you point to the passage of Heller that you have in mind?

This isn't 'judicial restraint', this is judicial head-in-the-sand. If there's no right to self-defense, that predates the Constitution, the Declaration of Independence, and the King of England, than under what scheme was the Declaration issued? If it wasn't an exercise of a God-given Right of self defense, what was it?

Tucker:

A French financed right of insurrection.

Apologies if someone has already noted this in the comments on Orin's and Eugene's several posts here, but Sanford Levinson had an interesting post on Balkinization a week or so ago on the issue of banning hunting after Heller.

Could a state legislature ban hunting, in light of Heller, given that most people would agree that (in addition to self-defense) subsistence hunting was an important use of firearms at the time of adoption of the 2nd Amendment? Levinson thinks hunting COULD be banned, and I am inclined to agree with him - suggesting that the right to bear arms does NOT necessarily imply constitutional protection of certain subsidiary "rights," such as hunting and - I would say - self-defense using firearms.

I don't need no stinkin' constitution to give me the right to defend myself. God gave me that right when I was born.

Sometimes it clarifies things to state the obvious.

I don't pretend this is an original thought, not having read the many threads on this topic, but it's not intuitively obvious to me that the Second Amendment uniquely creates a right that protects me from my fellow citizen, while the rest of the original Ten protect me from government action.

Justice Scalia may oppose "judicially-crafted unenumerated rights", but I think the argument that is being made here in favor of a "right to self-defense" is that the right is not judicially crafted -- instead, it need only be a judicially-recognized unenumerated right.

Scalia was very clear in Michael H. v. Gerald D. that he would only accept unenumerated rights at the most specific level of generality, i.e., was there a tradition that THIS PARTICULAR KIND OF LAW THAT THE PARTY SEEKS TO INVALIDATE was beyond the powers of government at the time the Constitution was adopted. (When you think about it, he has to take this position, or else it is really easy to justify Roe v. Wade based on amorphous concepts of privacy and dignity that the framers are alleged to have believed in.)

If Scalia was not simply blowing smoke in Michael H., he can't support a free-floating unenumerated right to self-defense.

You mean like this:

Held:
1. The Second Amendment protects an individual right to possess a
firearm unconnected with service in a militia, and to use that arm for
traditionally lawful purposes, such as self-defense within the home.

According to my understanding of the English language, this directly says that self-defense is a "lawful purpose[]" in regards to use of arms.

Or do you mean:

the inherent right of self-defense

mentioned on page 56?

Or on page 60 where we find "It is inconceivable that this law would have been enforced against a person exercising his right to self-defense"... what right to self-defense?

It is not a misunderstanding that the Heller opinion on numerous occasions states that there is a "right to self-defense" and that this right is intrinsically bound up in the Second Amendment.( pg 56 " the inherent right of self-defense has been central to the Second Amendment right." )

Government has no legal duty to protect you according to the caselaw, and you have no constitutional right to protect yourself according to Oren. So in Oren's scheme, as I understand it, government can constitutionally place you under a legal duty to submit and die if violently attacked.

There must be something wrong here -- perhaps a Fifth/Fourteenth Amendment problem. Certainly this is a deprivation of life w/o due process? Otherwise it sounds like something from Peter Suber's _Case of the Spelunkean Explorers_.

Perhaps the Fifth and Fourteenth Amendments ought to be interpreted to require government to statutorily allow for self-defense, a little like the Sixth imposes an obligation to statutorily provide for jury trials (I think).

JNH

If there is a constitutional right to privacy, there's a constitutional right to self defense.

Enough said.

Darrel,

While I appreciate your first citation, I believe that's from the syllabus which can't be used for such a purpose as I understand the rules.

I'm pretty sure Eugene's first point is a misreading of what Heller was doing. Eugene writes: "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?"

The actually holding says, "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home." The issue of self-defense came up to support the Court's determination that the right enshrined by the Second Amendment is an individual right rather than a collective one connected to service in a militia. The Anti-Federalists demanded the codification of this right "to deny Congress power to abridge the ancient right of individuals to keep and beararms, so that the ideal of a citizens’ militia would be preserved."

True, the opinion goes on to speak about how "keeping arms" was, historically, intimately tied to the idea of self-defense -- but again, only in the context of this being an individual rather than a collective right.

This basic question might have been covered in the several other threads on this topic, but what exactly are the practical consequences of there being or not being a specifically constitutional right to self-defense? After all, tort law (which I know something about) uniformly allows self-defense as a defense in, say, assault or battery cases. While I'm not a crim law guy, my understanding is that self-defense is a well-established defense there too.

I can think of two things constitutionalizing would do. One, it would prevent governments (state governments if the 2nd Am. is incorporated?) from getting rid of currently existing rights of self-defense in tort and criminal law. OK, but is the prospect of state governments doing that a realistic threat?

Second, I suppose that a court could find that the constitutional right is greater than the common-law right. So, maybe the limited "duty to retreat" rules that currently exist in a minority of states would be unconstitutional? But why would it necessarily be that the constitutional right would be broader than the common law right?

Am I missing something obvious?

The Fifth and Fourteenth Amendments don't protect people from dying without Due Process, they prevent the government from taking someone's life without due process. Most government policies include the risk of people dying. Actuaries make their living discussing it. By raising the speed limit, the government can be confident that more people will die, but that doesn't invoke the Fifth and Fourteenth, and neither would criminalizing self-defense.

There is a natural right of (self) defense which is inherrent and employed by any living creature, even without the requirement or ability to express it in language. Any act of aggression has two natural and proper responses; defense and attack of retaliation.

There are two labels for beings that do not recognize this: dead and extinct.

If The Constitution does not recognize and/or protect this right, I have the right to not-recognize and/or not-protect it in return. Lawyers, evidently not being subtle creatures, should be reminded that The Founders had a response to the conundrum; and Shakespeare proposed another solution.

Germanicus, I'm not talking about a law that might lead to a death. Banning self-defense would definitely lead to death. Just because the government isn't directly leading to the death shouldn't make a difference. If a court (whether by judge or jury) sentenced someone to death and then had a private party conduct the execution (instead of doing it itself), would that make the death penalty immune from judicial review since the government wouldn't be conducting the execution?

I'm initially suspicious of a Constitutional right to self-defense, but it probably makes about as much sense as a Constitutional right to privacy.

The difference is that a right to self-defense was part of the law in 1789, generally recognized as such (see Justice James Wilson's remarks about this which imply that it creates a right to armed self-defense). See also John Adams's remarks in A Defence of the Constitutions of the United States of America (1786) which considered self-defense so critical that Adams allowed the state to regulate people arming themselves--as long as individual self-defense was exempted from such regulation.

And where are the statements by the Framers about a right to privacy? They believed in it so little that they left intact laws that criminalized (in many case, as a capital crime) laws against private, consensual acts such as adultery, oral sex, and anal sex. If the Framers thought that there was a right to privacy (as distinguished from the more limited search and seizure protections of the Bill of Rights), they sure didn't act like it.

If The Constitution does not recognize and/or protect this right, I have the right to not-recognize and/or not-protect it in return. Lawyers, evidently not being subtle creatures, should be reminded that The Founders had a response to the conundrum; and Shakespeare proposed another solution.

One of my great concerns is that there is an emerging elite perspective that regards self-defense as despicable. A few years back, I had a conversation with one of the editors at the San Francisco Chronicle, and he flat out denied that there was ANY moral difference between a murderer and a murderer's victim using deadly force in self-defense. Like many convenient pacifists, he saw aggression and self-defense as morally equivalent, and thus saw no problem with laws that disarmed the victims.

And once this becomes law, then the law deserves no respect. Those who enforce such laws are outlaws, and deserving of whatever happens to them.

I can think of two things constitutionalizing would do. One, it would prevent governments (state governments if the 2nd Am. is incorporated?) from getting rid of currently existing rights of self-defense in tort and criminal law. OK, but is the prospect of state governments doing that a realistic threat?

Maybe not legislatively, but judicially. There have already been attempts. As I discuss here,
Black v. Indiana, No. 71A03-0502-CR-56 (Ind.App. 2005) overturned a conviction because the judge refused to allow the defense during voir dire to question jurors whether they had a moral objection to self-defense. (This was important, because the defendant was arguing that the killing was in self-defense.)

The Indiana Court of Appeals overturned the conviction on the grounds that the Indiana Const. RKBA provision allows one to bear arms in self-defense, and by prohibiting questions like this, there was a real risk that jurors who had a moral objection to self-defense (of which there are probably many in Indiana) would end up on the jury--to the detriment of Black's constitutional right to self-defense.

I think a lot of what drives this desire to criminalize self-defense is that it then provides an excuse to disarm the population.

As I'm the VC's resident proponent of judicial restraint . . .

A Kennedy clerk as the resident proponent of judicial restraint.

Orin: Sure; although you asked if I could cite "the" passage I had in mind - I think there are several -

From syllabus of slip opinion: "Held: 1. The Second Amendment protects and individual right to possess a firearm...and to use that firearm for traditionally lawful purposes, such as self defense within the home." (emphasis added).

The Court said D.C.'s ban on handguns was unconstitutional because it "amounts to a prohibition on an entire class of 'arms' that Americans overwhelmingly choose for the lawful purpose of self-defense".

"The requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional."

"JUSTICE BREYER’s asser-tion that individual self-defense is merely a “subsidiary interest” of the right to keep and bear arms, see post, at 36, is profoundly mistaken. He bases that assertion solely upon the prologue—but that can only show that self-defense had little to do with the right’s codification; it wasthe central component of the right itself."

"That of the nine state constitutional protections for the right to bear arms en-acted 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 generationconceived of the right. And with one possible exception that we discuss in Part II–D–2, 19th-century courts and commentators interpreted these state constitutional provi-sions to protect an individual right to use arms for self-defense."

"It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense."


"As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right."


hth. Please address my original post. TYIA

Repeal 16-17:

A law banning self-defense would cause death if someone was attacked and failed to run away. I'll agree with you that this is a statistical certainty.

Similarly, the EPA has to decide where to set allowable limits on certain hazardous materials, and they set the limit knowing that people will die who wouldn't have if they set it higher. Similar calculations are done in many situations the government comes across. These deaths are just as statistically certain as the death from inability to defend oneself. The government doesn't (as far as I know) tell criminals to break into people's houses and try to kill them, so they aren't the one's taking life without due process in your scenario.

If your dystopian scenario came true, I would share your outrage, but I wouldn't base my legal arguments on those particular Amendments.

Clayton E. Cramer:

I know.

JA:

You say Eugene is misreading Heller because self defense only came up to support the notion of an individual rather than a collective right.

But the very passage you cite shows it goes beyond that. It explicitly says that the Second Amendment protect gun ownership PLUS its use in self defense. It doesn't say gun ownership - oh and p.s. it was for lawful individual purposes like self defense not merely collective purposes. Rather, the passage you cited explicitly states that self-defense with a gun is actively protected under the 2cd.

Let me expand a little.

First, it's pretty clear that the Syllabus isn't recognizing a Constitutional right to self-defense. When it refers to self-defense by itself, the latter is always qualified by the word "lawful" or by phrases like "the core lawful purpose of self-defense."

Second, Heller's complaint: his lawsuit claimed that DC's statute effectively prohibits the use of "functional firearms within the home", and therefore violated his rights. DC denied, and the Court of Appeals reversed, construing Heller's complaint as "seeking the right to render a firearm operable and carry it about his home in that condition only when necessary for self-defense." Footnote 2 of Heller applies here, and reads, "That construction has not been challenged." Indeed, the thrust of Respondent's Brief is that the right to keep and bear arms is "an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home." The function of the term "such as" is to introduce an example of a class in order to clarify it; here, the class is "traditionally lawful purposes". Presumably, another traditionally lawful purpose is hunting; if we stopped here, we'd have to say that, using Heller to argue self-defense as a Constitutional right, you'd also have to argue hunting as a Constitutional right. Indeed, to be consistent you'd have to argue the entire class.

"Self-defense" next comes up when determining the object of the right -- i.e., arms. The thrust of this section is that the meaning of "arms" is broader than a "collective rights" reading would imply. "The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity." Again, the reasoning's main emphasis is the untenability of a "collective right" interpretation of the Second Amendment.

Indeed, this core context determines the rest of the analysis. Pace Petitioners, "keep arms" does not have a specifically military connotation; instead, it was "simply a common way of referring to possessing arms, for militiamen and everyone else." "Bear arms" does have an idiomatic meaning, however: it means to carry arms in case of confrontation. (Id., referencing Ginsburg's dissent in Muscarello). Importantly, the right is not to use arms for self-defense, but to carry them "upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person", which tends to undermine the right to self-defense argument unless the right to "offense" is in there as well.

Gluing this all back together, the majority "find that [the Second Amendment guarantees] the individual right to possess and carry weapons in case of confrontation." This is distinct from the right to use the weapons in self-defense. The right to keep and carry arms flows from respect for the equality of all men; indeed, it actualizes this ideal, both in terms of power, and in terms of responsibility. Both the natural right of self-preservation, and the goal of "a nation of citizens not subjects" were factors in its codification. However, to get from there to a Constitutionally protected right to self-defense is quite a leap, unless we assume that all such factors which lead to the codification of Rights are protected.

The next time "self-defense" crops, its in the context of determining "what types of weapons Miller permits." Reinforcing the "not specifically military" meme, the opinion defines the class of allowable weapons as "used for lawful purposes", since under Miller men who were called to militia service "were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." Again, the phrase "for lawful purposes, like self-defense" appears.

Of course, the water gets muddied quite a bit when the opinion turns to the DC law, particular this gem: "As the quotations earlier in this opinion demonstrate,the inherent right of self-defense has been central to the Second Amendment right.the inherent right of self-defense has been central to the Second Amendment right." I take this as meaning "the belief in this natural right was a central factor in the codification of the amendment." True, the history here is much stronger than anything in support of a "right to privacy", and the opinion did use the term "inherent right". Nevertheless, as the preceding textual analysis makes clear, this referencing of history and subtext was made to clarify the original meaning of the text, not to provide theoretical grounds for a new right. And the following sentence reduces the act of self-defense from an "inherent right" to "that lawful purpose."

The other arguments for a Constitutional right to self-defense are entirely dependent on history and subtext, rather than turning to history and subtext to resolve an ambiguity. As such they are not different in kind but only in degree from emanations-of-penumbra-style reasoning -- as I said on Eugene's thread, supra.

That said, I would prefer a Constitutionally protected right to self-defense. I just don't think we have one right now, unless the Court determines we have one by Griswold-style fiat.

Flashback to 1970 California: "Again, do you *really* think there is a significant risk that courts or legislatures would decide that there is a constitutional right for two men to get married? Especially since homosexual sex is a felony?" Slippery slopes aren't just greased with K-Y Jelly.

This is a nice analogy and all, but it doesn't answer Joseph Slater's question. Do you or do you not believe that there is a significant risk that courts or legislatures will do away with the right of self-defense in tort and criminal cases?

Dilan Esper: that is the best post I've seen by you in this forum; I think you have it exactly right, up till the last sentence. My guess is, that in a case raising the issue, Scalia would be likely to find a historical tradition of this kind of law, and support an unenumerated right, perhaps under due process, maybe even under the 9th or 2nd.

They didn't act like there was anything more than perhaps a very limited right to self-defense either. Self-defense defenses to criminal prosecutions and tort actions for assault, battery, and homicide were quite limited in many jurisdictions, and yet nobody thought those limitations were unconstitutional.

There are a couple of different claims on this point: one that asserts that the broad protection of a right to use deadly force developed in the 19th century. Richard Maxwell Brown's No Duty To Retreat: Violence and Values in American History and Society makes that claim. Others are skeptical, and my own research suggests that Brown has at least overstated the duty to retreat.

It is true that the common law did not recognize a right to use deadly force even in self-defense. Until 1532, you would lose all your assets, and have to throw yourself on the mercy of the king for a pardon. Parliament in that year changed the law so that the use of deadly force in self-defense against burglary, robbery, or murder, was now legal--and without loss of property, or the need to beg for the king's pardon. But when I look at the cases that I find scattered about it in the Colonial and Revolutionary period, if there was no right to use or threaten deadly force in self-defense, it seems not to have been widely noticed.

Professor Kerr:

Sorry for being mildly snarky, especially towards a brilliant legal thinker such as yourself whom I greatly respect. Of course it's clear what is being discussed. However, in this instance I read Justice Scalia's apparent assumptions about the existence of an implied right of self-defense as an indication that it is so well-entrenched that even he shortcut his normal doctrinal framework for analyzing Constitutional rights. And frankly, having given voice to the assumption that such a right exists in Heller, the Court has in effect explicitly Constitutionalized the right. It's even more remarkable that Justice Scalia did this, rather than an acolyte of, say, Justice Douglas.

While I generally assume that whenever I disagree with you I must be wrong, in this instance I really do think Professor Volokh has the better argument.

(i was interrupted by a telemarketer and didn't hit publish until the thread had moved on.) i think i was wrong before; Scalia does explicitly state that there is a second amendment right of self-defense. Orin is probably still right that Scalia's not saying the right is a general one, but is protected under the 2nd in the context of firearms (and probably other arms such as swords). Whether Scalia and the court will recognize a more general right of self defense under the constitution, and which constitutional provision they will peg it to, is a question for another day. Heller:
"but that can only show that self-defense had little to do with the right’s codification; it was the central component of the right itself."

Pardon me for not reading all the way through the comments before posting, but I have to get ready for work.

I've seen the argument made in various opinion pieces, and (I think) scholarly papers, that the individual right to self defense animates the "life/health of the mother" justification for late term abortions. Has such an position ever been argued in an actual court?

"The first thing we do, kill all the lawyers."

Start acting on that plan and I guarantee you that every court in the land will recognize a constitutional right to self defense.

Only in some bizzaro lawyer world -- like this one -- is this even a subject for debate.

What I don't buy is that an ORIGINALIST could justify striking down common law restrictions on the assertion of self-defense rights in tort and criminal actions on the basis of such of right.

I can agree with you on this, but then again, common law limitations on self-defense (except for the provision in the Seventh Amendment relating to civil suits) isn't frozen by the Constitution's 1791 understanding. States have been free to make statutory changes, and have done so.

Orin, I understand that you think you're arguing what *is*, but I think Eugene has the better argument, and his *is* also happens to correspond to my *ought.

The fact that what you're arguing diverges from my *ought* is a fundamental problem with your argument, as noted by several other commentators above.

On a larger point, I know it's fun for law professors to dicker over little points of law, but it's also fun for us citizens to see them excercise some regard for the founding principles of the law of the land. The fact that the argument you're making turns those principles on their head should give you pause.

And you didn't answer the question about the Declaration; I'm presuming then that the answer is a no.

Some of the comments here are just unnecessary. Picking on Orin for his teaching ability? Ripping his claim of being in favor of restraint because he clerkd for Kennedy? Why not just stick the merits rather than bringing in the invective?

And the fact that Orin clerked for Kennedy doesn't mean he thinks like Kennedy any more than Judge Posner thinks like William Brennan. And that's not to pick on your Justice, Orin, as he can defend himself. I just think some of the comments on this topic are so far over the top, and I think it's really low for people to pick on a judge for whom someone clerked, as even if the person deserves to be criticized, you aren't going to be the person to do it (nor should you).

If this is the thought process of a modern classical liberal/libertarian then, boy, are we're in trouble.

MIR,

I'm curious: Do you think our classical liberal views are so unpersuasive that we can't convince people that they are correct in the regular political process? If so, why is that?

er, most people NOT trained in splitting legal hairs...

Clayton:

Color me still entirely unconvinced re your fear that radical judges, absent a specifically *constitutional* right to self-defense, will get rid of the right to self defense generally.

Again, that doesn't go to the issue of whether the better legal interpretation would be that there is or isn't a specifically constitutional right. But I still don't see what the practical significance would be of finding one.

I think the two most likely reasons that you seem to be running into a lot of people who believe that self-defense is murder are that either people like saying things that make you mad, or you take people's statements out of context.

Or I talk to a lot of fanatical gun control advocates--among the smallest minority groups in America, but relative to their numbers (perhaps 1-2% of the population), among the most powerful.

I guess that's the problem with discussing constitutional law on a blog: People tend to think the constitution means whatever they want, so if you make a claim about existing law they think you're really making a claim about what you want the law to be.

I see Professor Kerr's point about this, and I'm not sure that I strongly disagree with him. The right of self-defense is clearly protected by the Ninth Amendment from federal interference, and we are somewhat dependent on state judges to not overrule the legislatures with respect to a right to self-defense. At the moment, this isn't likely to happen.

But at least part of why you are seeing this strong reaction is that most of us who have been active in gun rights have met plenty of people whose fanaticism against self-defense knows no bounds--and we've watched these crazies (many of them academics, of course) exert enormous influence over the political process.