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.

I'm curious as to what jurisprudence says about self-defense in US (what are its definitions and conceptual limitations). Any hint?
7.17.2008 1:06am
DOn't forget that while Illinois has a right, it's "subject to police power" i.e. nonexistant despite.
7.17.2008 1:35am
JohnEMack (mail):
I am not so sure Minnesota has no "right to bear arms" provision. The State recently passed a "right to hunt and fish" amendment, and the argument has been made that this means the right to hunt and fish for traditionally-hunted game with traditional hunting weapons. As it is hard to hunt ducks with a bow and arrow or pheasants with a spear, there is an argument that the right to hunt and fish incorporates a limited right to bear arms.
7.17.2008 1:21pm