As I’m the VC’s resident proponent of judicial restraint, it’s probably not surprising that I’m not quite ready to accept Eugene’s views about a federal constitutional right to self-defense. Just a few quick responses to Eugene’s very interesting posts on the topic:
(1) I agree that there are snippets of opinions that could be used to support an argument that there is some kind of constitutional right to self-defense. But these snippets strike me as just, well, snippets. A court could cite them if the court wanted to go there, but the authority itself doesn’t seem to be strong enough to actually establish the point.
(2) Eugene suggests that there can’t be a Second Amendment right to use guns in self-defense without a general right to self-defense “because tradition is on the side of a right to self-defense using whatever means come to hand.” I’d be interested in hearing more about this, as I don’t think I understand its import. The fact that something is traditional doesn’t mean without more that the constitution protects it.
(3) On the question of whether Justice Scalia would recognize a constitutional right to self-defense, I don’t know. I would think that such a move would be pretty inconsistent with his well-known opposition to judicially-crafted unenumerated rights. Such a move would be particularly ironic if Eugene is right in his argument that a constitutional right of self-defense explains parts of Roe v. Wade and Casey. But who knows.
(4) The disagreement between Eugene and me reminds me a bit of our disagreement in April 2007 over the “defense of property” defense. You can read the exchange here. It was a different discussion, of course, 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.