Academic journal article Texas Review of Law & Politics

State Constitutional Rights of Self-Defense and Defense of Property

Academic journal article Texas Review of Law & Politics

State Constitutional Rights of Self-Defense and Defense of Property

Article excerpt


"[D]efending life and liberty" and "protecting property," twenty-one state constitutions expressly tell us, are constitutional rights, generally "inalienable" though in some constitutions merely "inherent" or "natural" and God-given. Yet they are also almost entirely undiscussed constitutional rights. The leading treatise on state constitutional law doesn't mention them. An excellent forthcoming article on a federal constitutional right to self-defense doesn't discuss the state rights.21 could find no law review articles that discussed the rights in depth.

This silence may stem precisely from the broad acceptance of self-defense (and defense of property, at least with force that is not ledial to humans) as a criminal law doctrine. If states never deny people the right of self-defense, then there's little occasion to explore constitutional limits on such denials.

Nonetheless, the constitutional status of self-defense may matter; it may, for instance, influence courts' judgments about:

* the boundaries of self-defense or defense-of-property doctrine, such as proposed self-defense exceptions to felon-in-possession statutes,3 or when someone forfeits his right to self-defense against fellow criminals by engaging in a drug transaction;4

* tort liability based on acts of self-defense or defense of property, such as when a store's employee defends himself against a criminal and in the process inadvertently jeopardizes a third party;

* limits on private employers' ability to fire employees for violent acts in the workplace when the acts were defensive;6

* attempts to defend life against nonhuman threats, such as attempts to defend life against terminal disease using drugs that haven't yet been fully tested, or to defend life against organ failure by paying for organs to be transplanted;7 or

* the permissibility of bans on nonlethal weapons such as tasers (even setting aside the gun control debate).8

And, more broadly, thinking about a right that many constitution-drafters found important enough to expressly secure may provide a broader perspective on American constitutionalism.

This article isn't meant to resolve these issues, or even provide a theoretical framework for resolving them. It simply aims to help others discuss the questions by collecting the chief sources-mainly constitutional provisions and cases interpreting them-that are relevant to the subject. Having found the sources myself in writing an article about an unusual sort of self-defense,9 I thought it would be helpful to spare others the same effort.

Part II collects the texts of the state constitutional provisions. Part III cites and synthesizes the lower court cases on the subject, and establishes that there is a substantial tradition of treating the right as judicially enforceable and not just hortatory. Part IV points to those state constitutional right-to-bear-arms provisions that implicitly support a right to self-defense, and to cases so interpreting those provisions. Part V reaches beyond state constitutions to summarize the cases discussing whether the federal Constitution's Due Process Clause or Ninth Amendment protects a right to self-defense.


Arkansas: "All men are created equally free and independent, and have certain inherent and inalienable rights; amongst which are those of enjoying and defending life and liberty; of acquiring, possessing and protecting property, and reputation; and of pursuing their own happiness. To secure these rights governments are instituted among men, deriving their just powers from the consent of the governed."10

California: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy. …

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