Constitutional Right to Self-Defense?

[tombogan03884]

http://volokh.com/archives/archive_2009_07_19-2009_07_25.shtml#1248194157

A Constitutional Right to Self-Defense?
http://volokh.com/archives/archive_2009_07_19-2009_07_25.shtml#1248194157


   [1]Senator Coburn's exchange with Judge Sotomayor last week brought up
   the question whether there's a constitutional right to self-defense. A
   few thoughts, from [2]a post from a year ago:

   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?

   2. Heller often talks of a "right to self-defense" in contexts that
   suggest it is of constitutional statute, e.g., "That of the nine state
   constitutional protections for the right to bear arms enacted
   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 generation conceived of the right."

   3. I suppose that a right to keep and bear arms in self-defense could
   coexist with a regime that allowed people only a right to self-defense
   using arms, and that banned unarmed self-defense, or self-defense with
   weapons that might not qualify as "arms" for Second Amendment
   purposes. But that wouldn't make a lot of sense: Why would you have a
   right to defend yourself -- lethally, if necessary -- using the most
   lethal weapons, and not using less lethal means? Sometimes the legal
   answer to some questions is "because that's the way we've always done
   things, even if you think that's illogical," but that answer can't
   work here, because tradition is on the side of a right to self-defense
   using whatever means come to hand.

   4. But can an opinion by Justice Scalia, no fan of unenumerated
   rights, be read as recognizing such a right? Well, it does seem to
   read that way on its face; and beyond that, Justice Scalia has
   signalled an openness both to unenumerated rights when they have been
   broadly recognized for hundreds of years, and to this right in
   particular. See Montana v. Egelhoff, 518 U.S. 37, 56 (1996)
   (four-Justice plurality authored by Justice Scalia) (suggesting that
   "the right to have a jury consider self-defense evidence" may be
   "fundamental" and supported by the "historical record"; such a right
   would make little sense if self-defense could be abolished as a
   defense).

   5. At least some lower court judges -- including some Reagan and Bush
   appointees -- have shown a willingness to recognize a constitutional
   right to self-defense, even before the Second Amendment was recognized
   an individual right. Compare, e.g., Rowe v. DeBruyn, 17 F.3d 1047,
   1054-56 (7th Cir. 1994) (Ripple, J., dissenting); id. at 1047 n.**
   (Cudahy, Flaum, Ripple, and Rovner, JJ., supporting rehearing en
   banc); DeCamp v. N.J. Depât of Corr., 902 A.2d 357, 361â62 (N.J.
   Super. Ct. App. Div. 2006) (endorsing Judge Rippleâs position and
   concluding that prisoners have self-defense rights, though without
   explicitly deciding whether those are federal constitutional rights or
   only state law rights); Isaac v. Engle, 646 F.2d 1129 (6th Cir. 1980)
   (en banc) (Merritt, J., dissenting), rev'd on other grounds, 456 U.S.
   107 (1982) with Rowe, 17 F.3d at 1052-53 (7th Cir. 1994) (rejecting a
   constitutional right to self-defense generally, though the case
   involved only prisoner rights); White v. Arn, 788 F.2d 338, 347 (6th
   Cir. 1986) (rejecting a constitutional right to self-defense
   generally, though the only issue in the case was whether the defendant
   could be required to prove self-defense by a preponderance of the
   evidence, rather than requiring the prosecution to disprove
   self-defense beyond a reasonable doubt).

   6. Likewise, at least two state courts have expressly read a state
   constitutional right to bear arms in self-defense provision as
   supporting a right to self-defense, at least with the constitutionally
   protected arms (though for the reasons mentioned in item 2, I don't
   see how the right would be so limited). See McKellar v. Mason, 159 So.
   2d 700, 702 (La. Ct. App. 1964); State ex rel. City of Princeton v.
   Buckner, 377 S.E.2d 139, 142â44 (W. Va. 1988).

   7. If one counts all the states that have a right to bear arms for
   individual self-defense in the state constitution together with all
   the states that have a right to defend life expressly mentioned in the
   state constitution (and many state courts have indeed read such rights
   to defend life and property as securing constitutionally protected
   rights), one gets 44 of the 50 states -- an important marker of the
   breadth of self-defense as a constitutionally secured right, and not
   just a common-law right. See generally Volokh, [3]State Constitutional
   Rights of Self-Defense and Defense of Property, 11 Tex. Rev. of L. &
   Pol. 399 (2007); see also [4]this earlier post and [5]this one.

   None of these, standing alone, would be dispositive evidence that the
   courts are likely to recognize a constitutional right to self-defense
   in the wake of Heller. But put together, it seems to me they point
   strongly in that direction.

   I should note, though, that this surely doesn't mean a constitutional
   right to use deadly force in all circumstances in which one is
   defending oneself. Historical limitations on this right -- either
   broadly accepted, or at least accepted by a substantial minority of
   states -- are likely to be upheld, especially if history and tradition
   is a large part of the basis for recognizing the right in the first
   place.

   Thus, a rule that one can only use deadly force to defend oneself
   against threats of death, serious bodily injury, rape, kidnapping, and
   a few other very serious threats would likely be constitutional (even
   though many states also allow use of deadly force to defend against
   robbery and in some situations burglary). Likewise, the "duty to
   retreat," which is to say the principle that deadly force can only be
   used in self-defense if it's genuinely necessary, in that no safe
   avenue of retreat is available, is likely to be constitutional, too,
   because it has long been recognized in at least a substantial minority
   of states. There may be other examples as well. My point is that a
   federal constitutional right to self-defense likely exists, especially
   in the wake of Heller. But it is not unlimited, and is likely to be
   strongest precisely where there's a broad and deep common-law and
   statutory tradition of recognizing such a right.

References

   1. http://www.washingtonpost.com/wp-dyn/content/article/2009/07/15/AR2009071501414.html
   2. http://www.volokh.com/posts/1216170382.shtml
   3. http://www.trolp.org/main_pgs/issues/v11n2/Volokh.pdf
   4. http://www.volokh.com/posts/1216248712.shtml
   5. http://www.volokh.com/posts/1216216736.shtml

[JC5123]

I guess I just need to go to college to be re indoctrinated, but I always took the founders at their word on this. We were given the second amendment specifically for self defense. Particularly from an overly oppressive government.

Tom has touched on this before, about how in the "old" days people said what they meant and meant what they said.  Imagine that. I was taught this philosophy, and by God I still take people at their word.


I know, I know, silly me!

[fightingquaker13]

Good post Tom, and I hope its dispositive. If we use "history and tradition and common practice in the states (or commity)", as we should, when looking at what the US version of common law is, it should make incorporating Heller a no brainer. We can only hope 5 justices agree.
FQ13

[tombogan03884]

 Many State Constitutions SPECIFY that we have the right to armed revolt when we don't like the way the Govt. is conducting itself. With that in mind how could any one but a moron or liberal question whether we have an inherent right to self defense ?