Do We Have A ‘Right” To Self-Defense? Not Unless The Government Says So.

Show me a single statement from anyone in Gun-nut Nation who justifies gun ownership without invoking the ‘individual’ or ‘inalienable right’ to self-defense and I’ll send a hundred bucks to the charity of your choice. Why, do you ask, would I be so quick to give away some of my hard-earned money? Because the idea that we have a right to protect ourselves which goes beyond the 2nd Amendment has been a stock-in-trade of gun ownership long before Charlton Heston stood up at the NRA meeting in 2000 and dared anyone to take the plastic version of an old flintlock rifle out of his ‘cold, dead hands.’

heston             The idea that self-defense is a ‘natural’ right which exists outside the legal system is about as true as the idea that Charlton Heston’s real name was Charlton Heston.  In fact, his name was John Carter, but how could Hollywood let someone with such a prosaic moniker bring down the Ten Commandments? On the other hand, pro-gun advocates have always felt comfortable justifying their ownership of guns as a religious commandment, so if a name could be invented for the actor who received the most holy of all religious texts, why not invent a God-given reason to own a gun?

There’s only one little problem. You can cite this biblical text or that biblical text all you want, but the notion that we have a ‘right’ to defend ourselves isn’t found anywhere in the Constitution at all. And despite what you might glean from those narcissistic tweets which keep tumbling out of the Oval Office, we still have to abide by what the Constitution says, not what we think it says or hope it says. That’s it.

If you want to understand what the Constitution says and doesn’t say about self-defense, I suggest you read the superb article by Darrell Miller, “Self-Defense, Defense of Others, and the State, which was one of the papers presented last year at the Brennan Center Symposium on the 2nd Amendment and can be downloaded from the Duke Law Journal linked here. Miller points out that even though the Heller decision rested upon a ‘basic’ and ‘deeply rooted’ pre-Constitutional ‘right,’ in fact, the legal definition of this self-protection “has been heavily conditioned and constructed by the state.” Further, “the core self-defense right identified in Heller is not as indisputably individualistic, inalienable, and innate as is often assumed. Instead, the state’s role in this concept has been dominant throughout history.”

Miller’s argument creates a serious problem for Gun-nut Nation, because the last thing they want to admit or believe is that the government should be able to define self-defense, because if it can, this means the government can regulate what types of self-defensive behavior can be allowed, which means the government can regulate – oh my God – the use of guns.  And the whole point of promoting self-defense as some kind of ‘natural’ right is to remove gun regulations from the purview of the state, particularly if the state happens to be controlled by gun-grabbers like you know who.

Miller goes all the way back to the origins of common law following the Norman invasion in 1066 and shows that from then until now, the state, either the king or later the Parliament, was always involved in defining who could and couldn’t use self-defense as a justification for committing a capital crime. These definitions changed over time, but the state never withdrew from being the ultimate arbiter of how, when and why someone could engage in an act of self-defense.

Miller’s article is persuasive because it flows from a clear and balanced reading of legal opinions and texts. But when was the last time the pro-gun gang based anything it believes or promotes on a clear or balanced presentation of opinions or facts? With all due respect to the excellent work by Professor Miller and his colleagues who research and write about guns and law, I suspect that much of what they say never gets read by those who need to read it most.

 

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5 thoughts on “Do We Have A ‘Right” To Self-Defense? Not Unless The Government Says So.

  1. I’m just an average citizen, though maybe one who is less lucky than most people, but on a different level luckier or perhaps smarter because I was prepared to defend myself on almost a dozen incidents over the last 40 years when common thugs tried to rob or kill me because I was able to show that I was prepared to defend myself because I was carrying my sidearm and never had to fire a shot! Thank God and thanks to our Constitution that I was legally able to defend myself, otherwise I doubt I would be writing this!

  2. Miller’s article is well worth reading as it is pretty nuanced. The fact that self defense law developed since the time of the Normans is one reason the state has such power to define self defense, i.e., originally, one who acted in self defense had to appeal to an absolute authority, the king. As Miller states, natural law (and the Age of Reason notion that individuals were their own masters rather than subject to the divine right of kings) only started to infiltrate this earlier top-down definition centuries later. Of course, like religion, natural law and our system of government are all a human mental construct so the fact that government has a major role in defining self defense in a democracy merely means we have defined it by an evolving consensus, i.e., the judiciary and ballot box.

    (p. 91) “…Although self-defense may be understood as rooted in natural law, according to Foster, positive law coordinates this natural law with duty. Foster offers the examples of using lethal force to repel a murderer, robber, burglar, or arsonist and concludes that in these circumstances “nature and [s]ocial duty cooperate. The citizen’s duty to enforce the law against felons and the citizen’s instinct for self-preservation are then in accord.”

    What Miller does is define the history of the law as it evolved. He provides a baseline for educated discourse. Whether the law is as it should be is a question (as he notes in his conclusions) but that is somewhat beyond the scope of his paper, which is quite good.

    Of course the Tenth Amendment states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Where to draw those lines, including the definition of lawful self-defense, is a constant point of debate.

  3. The only response I have to this article is something my English teacher made me recite in high school. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,”

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