Academic journal article Law and Contemporary Problems

Self-Defense, Defense of Others, and the State

Academic journal article Law and Contemporary Problems

Self-Defense, Defense of Others, and the State

Article excerpt


Self-defense often is described as being innate, inalienable, and individual. But the Supreme Court has never expressly held self-defense to be a constitutional right. (1) Instead, for most of American history, courts and commentators pared self-defense from criminal sanctions, plucked it from the common law, or sounded it from the penumbras of Due Process or the Ninth Amendment. (2)

District of Columbia v. Heller (3) is the closest the Court has come to stating that self-defense is a constitutional right. Heller held that the Second Amendment protects the right to keep and bear an arm in the home for self-protection. (4) The majority described individual self-defense as the "central component" of the Second Amendment, (5) a right that "pre-exist[s]" the written Constitution. (6) In Heller's sequel, McDonald v. City of Chicago, the majority described the right to self-defense as "basic" and "deeply rooted." (7) Though Heller and McDonald still did not directly state that self-defense is constitutional law, these cases appear to make self-defense more a matter of federal constitutional concern than ever before.

Yet, these decisions--and the lower courts that have followed them--have done little to define this "central" feature of the Amendment. Sometimes judges or commentators suggest that the terms "preexisting," "basic," and "deeply rooted" mean the Second Amendment is fixed in English common law tradition. (8) Sometimes they use these terms to mean that the Second Amendment codifies natural rights philosophy. (9) Some decisions appear to expand these sources, suggesting that Second Amendment self-defense is not tied to any one culture, nation, or time, but is trans-cultural, trans-national, and trans-temporal. (10) Some reject any human agency for the right. For them, self-defense is not a creature of constitutions, common law, history, or tradition, but is written into the soul of man by God. (11)

This article investigates what it means to say the "central component" of the Second Amendment is self-defense and explores how that "central component" relates to firearm policy. It assumes that Heller understands Second Amendment self-defense to be derived from a body of Anglo-American jurisprudence that pre-exists the Founding. Given this assumption, self-defense, as well as its close relative, defense of others, has been far from inalienable, individual, or innate. Instead it has been heavily conditioned and constructed by the state.

Early self-defense law in the Anglo-American tradition presumed that homicide--even in self-defense--required the pardon of the sovereign. Only those slayers who killed as an actual or constructive agent of the state were completely innocent. Especially when self-defense extended beyond the home to the public, to the defense of others, and to the apprehension or prevention of a felony, state construction and regulation of self-defense was the rule, not the exception.

This article supports this historical investigation with new scholarship on political philosophy and theories of justification. These scholars argue that self-defense and defense of others depend on notions of public authority. As one theorist states, private citizens have power to execute their judgment "only insofar as they stand in the shoes of public officials to whom this authority belongs." (12) These theories of justification arise from, and respond to, early modern or Enlightenment philosophy, but are not bound by them. Although the issue is contestable, this article assumes that the Constitution does not enact the political philosophy of Thomas Paine or John Locke any more than it "enact[s] Mr. Herbert Spencer's Social Statics." (13) It assumes that an accurate legal description of the "central component" of the Second Amendment does not depend upon what James Madison or Thomas Jefferson thought about self-defense, but rather requires an understanding of the common law canvas upon which the Second Amendment was written as glossed by our best account of political philosophy. …

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