Firearms Owners Association
THE NATURAL RIGHT OF SELF-DEFENSE:
David B. Kopel*
I. THE NATURAL LAW IN RIGHT OF ARMED DEFENSE
B. Roots of the Right
II. THE NATURAL RIGHT’S IMPLICATIONS FOR THE HELLER DISSENTS
A. Natural Right and the Stevens Dissent
A. Implications for American Law
B. Implications for Foreign Law
One of the most important elements of the District of Columbia v. Heller decision is the natural law.1 Analysis of natural law in Heller shows why Justice Stevens’ dissent is clearly incorrect, and illuminates a crucial weakness in Justice Breyer’s dissent. The constitutional recognition of the natural law right of self-defense has important implications for American law, and for foreign and international law.
I. THE NATURAL LAW IN RIGHT OF ARMED DEFENSE
A. In the Heller Case
Heller reaffirms a point made in the 1876 Cruikshank case.2 The right to arms (unlike, say, the right to grand jury indictment) is not a right which is granted by the Constitution. It is a pre-existing natural right which is recognized and protected by the Constitution: [I]t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the preexistence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second [A]mendment declares that it shall not be infringed. . . .”3
As Heller pointed out, the 1689 English Declaration of Right (informally known as the English Bill of Rights) was a “predecessor to our Second Amendment.”4 According to the Declaration: “the [s]ubjects which are Protestants may have [a]rms for their [d]efence suitable to their [c]onditions and as allowed by [l]aw.”5 The Convention Parliament which wrote the Declaration of Right stated that the right to arms for defense was a “true[, ancient,] and indubitable Right[ ].”6 Yet, as Joyce Malcolm has detailed, 1689 was the first time that the right to arms had been formally protected by a positive enactment of English law.7
The explanation is simple. The Convention Parliament did not believe that it was creating new rights, but simply recognizing established ones. Although previous Parliaments had not enacted a statute specifically to protect the right of armed self-defense, British case law since 1330 had long recognized an absolute right to use deadly force against home invaders.8 The right to self-defense itself, along with its necessary implication of the right to use appropriate arms for self-defense, was considered to be firmly established by natural law.9
Thus, Heller quoted Blackstone’s treatise (which was by far the most influential legal treatise in the early American republic10) explaining that the Declaration of Right protected “‘the natural right of resistance and self- preservation,’” which was effectuated by “‘the right of having and using arms for self-preservation and defence.’”11
Some other parts of the Heller opinion include citations to sources describing the right of armed self-defense as a “natural” or “inherent” right. The majority writes that “Justice James Wilson interpreted the Pennsylvania Constitution’s arms-bearing right, for example, as a recognition of the natural right of defense ‘of one’s person or house’—what he called the law of ‘self preservation.’”12
Likewise quoted with approval is the 1846 Georgia Supreme Court decision Nunn v. State, which “construed the Second Amendment as protecting the ‘natural right of self-defence.’”13 Similarly, “A New York article of April 1769 said that ‘[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.”14
Thus, the Heller opinion concludes: “[a]s the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right.”15 Heller’s recognition of self-defense as a natural right was consistent with the same view in The Federalist,16 in most state constitutions,17 and in case law from before the Civil War to modern times.18
B. Roots of the Right
Although some modern scholars deny that natural law exists, there is no dispute that the Founders strongly believed in it.19 In a constitutional sense, the natural law basis of the right to armed self-defense is part of the original public meaning of the Second Amendment. That human rights were inherent, and not granted by government, was, after all, the basis on which the nation was created: “We hold these truths to be self-evident . . . that [all men] are endowed by their Creator with certain unalienable Rights. . . .”20
“Natural law” as a term of legal art was originally based on Catholic legal thought. In the twelfth century, Gratian’s “Treatise of the Discordant Canons” consolidated and synthesized disparate sources in various canon laws (church laws). He began with an explanation of natural law: Natural law is common to all nations because it exists everywhere through natural instinct, not because of any enactment. For example: the union of men and women, the succession and rearing of children, the common possession of all things, the identical liberty of all, or the acquisition of things that are taken from the heavens, earth, or sea, as well as the return of a thing deposited or of money entrusted to one, and the repelling of violence by force. This, and anything similar, is never regarded as unjust but is held to be natural and equitable.21 Gratian’s formulation of the natural right of “repelling violence by force” was similar to an expression of the same principle in Roman law.22
In the five centuries from Gratian to the American Constitution, the concept of natural law, including natural rights, was developed by Catholic scholars such as Thomas Aquinas, Francisco de Vitoria, Juan de Mariana, and Francisco Suárez (who called self-defense “the greatest of all rights”). From the personal right of self-defense against lone criminals, they derived the people’s right of self-defense against criminal, tyrannical governments.23
Few Americans were familiar with these Catholic scholars, except for Aquinas. The Anglo-Americans learned the language of natural rights, including the natural right of self-defense, from Protestant thinkers who had adopted the Catholic self-defense theories. The first of these writers were the persecuted Protestants of sixteenth-century France and England, including Theodore Beza, Peter Martyr Vermigli, and Christopher Goodman. For the Americans, the most influential were John Ponet, author of A Shorte Treatise of Politike Power (1556), and the pseudonymous Stephanus Junius Brutus, who wrote Vindiciae Contra Tyrannos (Vindication Against Tyrants) in 1579.24 According to John Adams, Vindiciae was one of the leading books by which England’s and America’s “present liberties have been established.”25 Adams wrote that there were three key periods in English history where scholars addressed the problems of tyranny and the proper structure of governments. The first of these, according to Adams, was the English reformation; next, when John Ponet put forth “all the essential principles of liberty, which were afterward dilated on by Sidney and Locke.”26
The Founders were also familiar with the great writers of international law, who based their entire system on the foundation of the natural right of self-defense. Hugo Grotius, the most important writer of all time in international law, built the laws of international warfare by extrapolation from the natural right of personal defense.27 Samuel von Pufendorf, who extended and elaborated Grotius’s work on international law and political philosophy, called self-defense the foundation of civilized society.28
The Declaration of Independence affirms that governments are created for the purpose of protecting natural rights.29 Accordingly, a necessary feature of a legitimate government will be the protection of natural rights. As the Supreme Court explained in Cruikshank, the right to assemble and the right to keep and bear arms are, each, “found wherever civilization exists.”30 Although personal self-defense is not specifically mentioned in the Declaration of Independence, that natural right is the intellectual foundation, in Western philosophy, of the right of the people to defend all their natural rights by using force to overthrow a tyrant.31
II. THE NATURAL RIGHT’S IMPLICATIONS FOR THE HELLER DISSENTS
A. Natural Right and the Stevens Dissent
Justice Stevens’ dissent does about as well as possible, given the facts available, on issues such as how much weight to give to the Second Amendment’s preamble, and whether “bear arms” must necessarily mean the carrying of guns only while in military service.32 Throughout the opinion, he argues passionately for his interpretation, although that interpretation requires a very selective view of the evidence; the dissent is like the argument that a sheet of paper has only one dimension, because if you look at it from just the right angle, it appears to be a straight line. Vast amounts of evidence have to be willfully ignored. For example, one treatise by Justice Story describes the Second Amendment in terms which are, at least arguably, not necessarily incompatible with Stevens’ militia- only view.33 But another treatise by Story, which was quoted by the majority, describes the Second Amendment in terms which fit the Heller majority’s view, and which are plainly contrary to the Stevens militia-only theory.34 The majority opinion discusses both treatises,35 but Stevens writes at length about the first treatise, ignores the existence of the second treatise, and provides no explanation for having done so.36
Justice Stevens dismisses the English Declaration of Right, and Blackstone’s description thereof, by contending that they addressed issues which were not of concern to the Founders, who according to Stevens were only thinking about the state ratification debates involving state vs. federal powers over the militia.37 Stevens’ view is contrary to that of James Madison, the author of the Second Amendment. In Madison’s notes for his speech introducing the Bill of Rights into the House of Representatives, he described the arms rights amendment as remedying two crucial defects in the English Declaration of Right: that the right included only the Protestant population, and that the right was, as a statutory enactment, efficacious against the King, but not against the actions of later Parliaments.38
But even without reference to Madison’s notes, the Stevens theory that the Second Amendment does not include the right of self-defense simply collapses when one gets to the word “the.”
The Second Amendment does not purport to grant a right, but instead declares that “the right . . . shall not be infringed.”39 Thus, the Second Amendment guarantees a pre-existing right. The Heller majority says so,40 and Stevens concedes the point.41 What was that pre-existing right? There are only two possibilities. One, as explicated by Scalia (consistent with Madison), is that the right is the English/Blackstone/natural right of arms for self-defense.42 Stevens, however, contends that “the” right is the right to serve in an armed militia.43 Only if he is correct about this point can his dissent as a whole be correct that the Second Amendment is purely about a right to have arms while in militia service.
There is not a shred of evidence from 1789, or from anytime before 1789, that militia service was a “right.” As Justice Scalia pointed out, the Stevens claim that “the” pre-existing right in the Second Amendment was a pre-existing right to service in the militia is unsupported by any evidence.44 There is simply no document or other source, from the eighteenth, seventeenth, or sixteenth centuries (or indeed from any century until the twenty-first, when the claim was invented as part of the Heller litigation) that the Second Amendment was preceded somewhere in Anglo-American law by a right to serve in the militia, or to have arms solely while in the militia. Rather, this novel theory appears in the Heller amicus brief filed by the Brady Center.45 The brief, too, is unadorned by any citation for its claim.
B. Natural Right and the Breyer Dissent
Most of the Breyer dissent lays out an interest-balancing test, in which Justice Breyer argues that there is some social science evidence in favor of the D.C. handgun ban, and therefore a judge cannot say as a matter of law that the ban is unconstitutional.46 A crucial step in that interest-balancing test is the weight of the interest on each side. Justice Breyer points out that preservation of arms ownership for use in a citizen militia was a major concern of the Second Amendment.47 Accordingly, he disputes the majority’s statement that the right of self-defense is “central” to the Second Amendment, and that the “core” of the Second Amendment is armed self- defense of the home.48
Justice Scalia responded by explaining why interest-balancing was inappropriate for a core constitutional right, but he did not directly address Breyer’s question about why self-defense should be considered part of the core in the first place.49 However, the answer is fairly clear from the natural law perspective which is incorporated in the majority opinion. Blackstone describes the right to personal defensive arms (protected, but not created by the 1689 English Declaration of Right) as a “natural” right.50 Other sources in the majority opinion make the same point that the Second Amendment protects a “natural” right.51
Even if balancing were appropriate, Justice Breyer’s scales are inaccurate, because they underweigh the importance of self-defense. Surely nothing could be more fundamental than a natural right. The Declaration of Independence, after all, did not begin with a statement of the importance of rights which were created by government (e.g., the right of a citizen to be assisted by his nation’s consular offices when he is traveling in a foreign country). Rather, the Declaration starts with natural, inherent rights, and states that the very purpose of government is to protect these rights. By the Declaration’s principles, the time that is most appropriate for rigorous judicial review is when a government infringes on one of the natural rights which the very government was established to protect.
From Grotius, Pufendorf, and many other sources, the Founders could see that self-defense had been protected under the laws of Ancient Rome and Ancient Greece, and from the very inception of the Hebrew nation.52 The historical episodes when the right of armed self-defense was endangered—the persecution of the disarmed Huguenots in France, the gun bans of the power-mad Stuarts monarchs in England, the 1775 confiscation of privately-owned firearms from the people of Boston by General Gage’s army—were precisely the episodes of tyranny which the Founders aimed to ensure would never again take place in the United States of America. From the Founders’ perspective, the right to arms truly was found “wherever civilization exists.”53
III. THE NATURAL RIGHT’S IMPLICATION FOR FUTURE LEGAL DEVELOPMENTS
A. Implications for American Law
Self-defense has generally been highly regarded by the American public, and Nicholas Johnson has persuasively argued that self-defense is the epitome of an unenumerated Ninth Amendment right.54 In contrast, some commentary has denigrated self-defense as a privilege, not a right.55
Heller moves self-defense from the shadowy limbo of the Ninth Amendment into the bright uplands of the Second Amendment. It is now beyond dispute in an American court that self-defense is an inherent right, and that it is protected by the United States Constitution.
The constitutional history of the right of self-defense is similar to that of the right of association. The right of association is not formally stated in the Constitution. But it is easy to see how if the right did not exist, many of the core purposes of the First Amendment might be defeated. For example, if people could not voluntarily associate in groups such as the NAACP, then their practical ability to petition the government for redress of grievances, to assemble, and to speak out effectively on issues of public importance would be greatly diminished. Thus, starting in 1958, the Supreme Court recognized a constitutional right of association, finding it rooted in the First and Fourteenth Amendments.56 Over the subsequent half-century, the Court has fleshed out that right, and applied it in many contexts far distant from the original cases involving Jim Crow state governments attempting to suppress the NAACP.
In a series of cases in the late nineteenth and early twentieth centuries, the Supreme Court strongly defended the right of self-defense—holding, for example, that carrying a gun for lawful protection was not evidence of murderous intent, and that a crime victim was not required to retreat or to avoid any place where he had a right to be before he could exercise his right to use deadly force in self-defense.57 Likewise, the defensive actions of crime-victims should not be subjected to judicial second-guessing; as Justice Holmes memorably put it: “Detached reflection cannot be demanded in the presence of an uplifted knife.”58
These cases were decided as matters of federal common law, most of them arising out of death sentences improperly imposed on people in the Indian Territory of Oklahoma for use of a gun in self-defense.59 Now that Heller has made it clear that self-defense is part of the Constitution, and not just part of federal common law, there may be plausible arguments that the rules of the Self-Defense Cases are likewise required as a matter of constitutional law.
Should the Second Amendment be incorporated against the states, a few jurisdictions might have to change hostile procedural rules against self defense. For example, until recently, Arizona required that a defendant asserting self-defense must carry the burden of proof.60 The few states which require retreat by a crime victim in her own home might lose constitutional challenges to those laws. If a judge prohibited a criminal defense lawyer during voir dire from asking potential jurors about whether they had moral objections to self-defense, a criminal conviction from such a jury might be invalid.61
B. Implications for Foreign Law
Heller only applies as binding law within the jurisdiction of the United States. However, American constitutional law has a long record of infiltrating into other civilized nations. American protection for freedom of speech and freedom of the press, as well as American anti-discrimination laws, have had significant influence in our fellow democracies. Sometimes that influence is direct, with foreign courts citing American precedents. But more important, in the long run, is the effect that the American example has on the rights-consciousness of the public in those nations.
The right to arms has already shown that it travels. In 2006, the people of Brazil overwhelmingly rejected a referendum to ban gun ownership, and proponents of the referendum noted with dismay the success of anti-referendum advertising which urged Brazilians not to surrender their rights.62
For the last decade, the United Nations has led a concerted global campaign against citizen gun ownership. The global prohibitionists have, to the extent they have acknowledged any American interest in protecting American laws, claimed that the Second Amendment protects no individual right of gun ownership, but is only a “collective” right which no individual has a right to exercise. All nine Justices in Heller rejected that claim, and affirmed that the Second Amendment guarantees an individual right. As a fallback position, some advocates have stated that the American Second Amendment is unique, and that its very absence shows the permissibility of gun prohibition in other nations.63
The latter argument was never really correct as a matter of constitutional law. Three nations besides the United States have a constitutional right to arms, and twenty nations have a formal constitutional recognition of self-defense.64
Heller’s natural law explication of the inherent right of armed self- defense teaches another very relevant lesson. The right of self-defense is not culturally contingent, and it does not depend on national law. The right of self-defense is a universal, fundamental, natural and inherent human right.
Of course there will be many governments which have ignored that right, and will continue to do so. For example, in the United Kingdom and the Netherlands, the principle that there is a right even of unarmed self- defense has been in grave danger—at least among the judiciary and the rest of the governing elites.65
Yet because Heller was not written solely in terms of positive American law, but rather with explicit recognition of pre-existing natural rights, the case may play a role in reminding the people of the world that they, too, have “the natural right of resistance and self-preservation,” a right which is necessarily effectuated by “the right of having and using arms for self-preservation and defence.”66 On one side of the debate are the Kenyans who say that the central government, which is manifestly unable and unwilling to protect the tribespeople, should rescind its prohibition on their possession of arms.67 On the other side is the United Nations, which claims that self-defense is not a right, but is a violation of the right of the criminal attacker, which seeks to outlaw all defensive ownership of firearms, and which has declared that laws in the United States and other nations which allow use of deadly force against rapists and other violent predators are a human rights violation.68
Heller points to a resolution of the conflict. Long before there was a United Nations, or a United States of America, there were inherent natural rights. The recognition of those rights is as old as civilization itself. Perhaps one of the greatest influences of Heller (and, I hope, its progeny) will be in other nations, where the explicit affirmation of the natural right of self-defense by the most influential court in the world will bolster our global brothers and sisters in their efforts to preserve and strengthen their own natural right of resistance and self-preservation.
*David B. Kopel
1. 128 S. Ct. 2783 (2008).
2. See United States v. Cruikshank, 92 U.S. 542, 553 (1876) (stating that the Second Amendment contains powers “‘not surrendered or restrained’ by the Constitution of the United States”) (citation omitted). Electronic copy available at: http://ssrn.com/abstract=1172255
3. Heller, 128 S. Ct. at 2797-98 (2008) (citing and quoting Cruikshank, 92 U.S. at 553).
4. Id. at 2798.
5. Bill of Rights, 1688, 1 W. & M., c. 2 (Eng.), available at http://www.statutelaw.gov.uk/content.aspx?activeTextDocId=1518621.
7. JOYCE LEE MALCOLM, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLOAMERICAN RIGHT 117-18 (1994).
8. David I. Caplan & Sue Wimmershoff-Caplan, Postmodernism and the Model Penal Code v. the Fourth, Fifth, and Fourteenth Amendments—and the Castle Privacy Doctrine in the Twenty-First Century, 73 UMKC L. REV. 1073, 1084-1134 (2005).
9. See id. at 1091-92. Electronic copy available at: http://ssrn.com/abstract=1172255
10. Heller, 128 S. Ct. at 2798 (writing that “Blackstone, whose works, we have said, ‘constituted the preeminent authority on English law for the founding generation,’, cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen.” (citing Alden v. Maine, 527 U.S. 706, 715 (1999))).
11. See id. (citing WILLIAM BLACKSTONE, 1 COMMENTARIES *139-40, 144); id. at 2972 n.7 (“with reference to colonists’ English rights: ‘The right of every individual to keep arms for his defence, suitable to his condition and degree; which was the public allowance, under due restrictions of the natural right of resistance and self-preservation’”) (citing WILLIAM ALEXANDER DUER, OUTLINES OF THE CONSTITUTIONAL JURISPRUDENCE OF THE UNITED STATES 31-32 (1833)).
12.Id. at 2793 (citations omitted).
13.Id. at 2809 (citing 1 Ga. 243, 251 (1846)).
14. Id. at 2799 (citations omitted).
15. Heller, 128 S. Ct. at 2817. The opinion includes other statements that self-defense is a right. See id. at 2820 (“It is inconceivable that this law would have been enforced against a person exercising his right to self-defense on New Year’s Day against such drunken hooligans.”); see also id. at 2801 (“Justice Breyer’s assertion that individual self- defense is merely a ‘subsidiary interest’ of the right to keep and bear arms, is profoundly mistaken. He bases that assertion solely upon the prologue—but that can only show that self-defense had little to do with the right’s codification; it was the central component of the right itself.”) (internal citation omitted).
16. THE FEDERALIST NO. 28 (Alexander Hamilton) (“that original right of self-defense which is paramount to all positive forms of government”).
17. David B. Kopel, Paul Gallant, & Joanne D. Eisen, The Human Right of Self Defense, 22 BYU J. PUB. L. 43, 101-02, 128 (2007) (Thirty-five U.S. state constitutions affirm that human rights are inherent, natural, or created by God; thirty-seven state constitutions affirm a right of self-defense, sometimes, but not always, articulated in the same clause as right to arms).
18. See, e.g., Finch v. State, 445 So. 2d 964, 966 (Ala. Crim. App. 1983) (“We agree with proposition expounded in Blankenship that: ‘Self-defense is a common instinct and a natural right, and, as we understand it, means standing one’s ground and repelling, as a means of self-protection, unprovoked force with force.’”) (citing Blankenship v. State, 11 Ala. App. 125, 128 (1914)); St. Louis S.W. Ry. Co. v. Berger, 44 S.W. 809, 814 (Ark. 1898) (Railroad cannot be sued because of an employee’s act of lawful self-defense—the employee’s self-defense is “not within any employment he may make, being a natural right which he can neither surrender, nor gratify by any contractual act. . . .”); People v. Watson, 133 P. 298, 303 (Cal. 1913) (“While defendant’s conduct with the woman was immoral, it did not take away from him the natural right of self-defense. . . .”); People v. Young, 825 P.2d 1004, 1007 (Colo. Ct. App. 1991) (citing the 1960 Colorado Supreme Court decision Vigil v. People that “self-defense is a natural right which is based on the law of self- preservation”) (citing 353 P.2d 82, 85-96 (Colo. 1960)); People v. Burns, 133 N.E. 263, 265 (Ill. 1921) (“When a citizen exercises the right of self-defense, he is not taking the law into his own hands. He is simply exercising a natural right which the law recognizes and protects.”); Thornton v. Taylor, 39 S.W. 830, 831 (Ky. Ct. App. 1897) (“The right of self- defense is a natural right. . .”); Nat’l Life & Accident Ins. Co. v. Turner, 174 So. 646, 647 (La. Ct. App. 1937) (“The right of self-defense is a natural right.”); Allen v. Currie, 8 La. App. 30, available at 1928 WL 3792, at *3 (La. Ct. App. 1928) (“even men of mature years will, in the exercise of their natural right of self-defense, meet or repulse any aggressor who may attempt to encroach on their rights. This is unquestionably true.”); State v. Arnett, 167 S.W. 526, 529 (Mo. 1914) (If statute against exhibiting a weapon in an angry manner:
(citation omitted)); R.R. Comm’n of Ohio v. Hocking Valley Ry. Co., 91 N.E. 865, 866 (Ohio 1910) (“By universal consent self-defense is recognized as a natural right of every individual and of every collection of individuals.”); Robinson v. Territory of Oklahoma, 85 P. 451, 455 (Okla. 1905) (“The right of self-defense is founded upon the natural right of a man to protect himself against the unlawful assault upon him by another.”), rev’d, Robinson v. Territory of Oklahoma, 148 F. 830 (C.C. Okla. 1906); Hummel v. State, 99 P.2d 913, 917 (Okla. Crim. App. 1940) (“The law adopts the natural right of self-defense, because it considers the future process of law an inadequate remedy for present injuries accompanied with force.”); Konigsberger v. Harvey, 7 P. 114, 115 (Or. 1885) (“The law upon that subject is the same as it was 500 years ago. The right of self-defense is a natural right, inherent in mankind. . . .”); State v. McGonigle, 45 P. 20, 22 (Wash. 1896) (“The plea of self-defense rests on the natural right. . . .”); Miller v. State, 119 N.W. 850, 857 (Wis. 1909) (“the divine right of self-defense”). It also written in Isaacs v. State, that:
25 Tex. 174, 177 (Tex. 1860).
State v. Davis, 52 N.C. (7 Jones) 52, 53, 55 (N.C. 1859).
Gray v. Combs, 30 Ky. (7 J.J. Marsh) 478, 481 (Ky. 1832). Sir Matthew Hale was Lord Chief Justice of England from 1671-76, and one of the most influential of all common law judges and treatise authors. The quote actually appears to be from MICHAEL FOSTER, CROWN CASES AND CROWN LAW 273-74 (photo reprint. 1982) (1762). Foster was a judge of the Court of King’s Bench from 1745 to 1763, and was much respected by Blackstone. The quote, with attribution to Foster, appears in the 1847 American annotated edition of Matthew Hale’s History of the Pleas of the Crown. See MATTHEW HALE, 1 HISTORY OF THE PLEAS OF THE CROWN 478 n.1 (W.A. Stokes & A. Ingersoll eds., 1847) (1732) (note added by editor). Because the 1847 “first American edition” of Hale post-dates the 1832 Kentucky court decision, it seems probable that the Kentucky court was using an English edition of Hale which also included an editor’s annotation with the Foster language.
To muddy the trail a little further, part of the quote appears in Parrish v. Commonwealth, citing to Hale as quoted in “Rutherforth Institutes”—which is a reference to Thomas Rutherforth, Institutes of Natural Law: Being the Substance of a Course of Lectures on Grotius De Jure Belli Et Pacis, a series of English-language lectures on Grotius and natural law; Rutherforth’s treatise was very popular in the United States in the Eighteenth and Nineteenth centuries. See 81 Va. 1, 4 (Va. 1884) (citing THOMAS RUTHERFORTH, INSTITUTES OF NATURAL LAW: BEING THE SUBSTANCE OF A COURSE OF LECTURES ON GROTIUS DE JURE BELLI ET PACIS 187-88 (1832)). Cf. Commonwealth v. Riley, Thacher’s Criminal Cases 471, 474-75 (Boston Mun. Ct., Mass., 1837) (quoting Foster).
19. See generally, e.g., JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980). Ely, who denies natural law, argues that judicial review should be limited to situations where the ordinary democratic process has failed to protect the rights of minorities. Id. at 135-85. His theory would lead to the same result in Heller. Every state legislature in the United States includes representatives from urban, suburban, and rural districts. The diversity of constituencies helps ensure that legislators have a diversity of life experiences, and makes it possible to legislators to explain to their colleagues aspects of daily life which may be unfamiliar. For example, a rural legislator may not understand from personal experience how big-city traffic jams waste so much time for suburban parents who are picking up children from school or daycare, and shuttling them to sports or music lessons; but the rural legislator can learn about the problem by talking to her suburban colleagues. Similarly, an urban legislator may have no personal understanding of the traditional role of the shooting sports in American life, but a rural legislator can explain it to her. The District of Columbia, however, is a compact and densely-populated city. Its members represent only urban areas, so the Council necessarily suffers from a unique lack of intellectual and life-experience diversity, compared to state legislators. Moreover, the current Council’s predecessors worked to eradicate the culture of legitimate firearms usage within the District; zoning rules outlaw indoor shooting ranges throughout the District. Because of the urban-only structure of the District’s government, it is uniquely susceptible to bigotry and irrational prejudice against law-abiding gun owners. To cite but one example, the District was the only government in the United States which forbade legal firearms owners from using their guns for self-defense in the home.
20. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
21. GRATIAN, THE TREATISE ON LAWS 6-7 (Augustine Thompson & James Gordley trans., 1993) (Distinction 1, C.7, §§ 2-3). In the original:
See Isidore, Etymologiae V, http://www.thelatinlibrary.com/isidore/5.shtml. Like self- defense, the natural law right of marriage and child-raising is not enumerated in the United States Constitution, but is a constitutionally-protected fundamental right. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 383-84 (1978) (marriage as a fundamental right); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (raising children).
22. The key Roman law rules for self-defense were “arms may be repelled by arms” and “it is permissible to repel force by force.” DIG. 188.8.131.52 (Ulpian, Edict 69) (“Cassius writes that it is permissible to repel force by force, and this right is conferred by nature. From this it appears, he says, that arms may be repelled by arms.”).
23. See David B. Kopel, The Catholic Second Amendment, 29 HAMLINE L. REV. 520, 553-55, 561 (2006) (Aquinas and Mariana); Kopel et al., supra note 17, at 63-68, 70-72 (Vitoria and Suárez); see generally David B. Kopel, Self-Defense in Asian Religions, 2 LIBERTY L. REV. 79 (2007) (Hinduism, Sikhism, Confucianism, Taoism, and [in practice] Buddhism all respect self-defense as an inherent right; that the Asian religions have, in this regard, quite similar attitudes to Western religions provides an important data point in support of the theory that natural law is a real phenomenon).
24. See generally STEPHANUS JUNIUS BRUTUS, VINDICIAE, CONTRA TYRANNOS: OR, CONCERNING THE LEGITIMATE POWER OF A PRINCE OVER THE PEOPLE, AND OF THE PEOPLE OVER A PRINCE (George Garnett ed., Cambridge Univ. Press 1994) (1579); JOHN PONET, A SHORT TREATISE OF POLITIKE POWER (1556); see also DOUGLAS F. KELLY, THE EMERGENCE OF LIBERTY IN THE MODERN WORLD: THE INFLUENCE OF CALVIN ON FIVE GOVERNMENTS FROM THE 16TH THROUGH 18TH CENTURIES 44-46 (1992) (explaining Vindiciae’s debt to Catholic thought); JOHN ACTON, THE HISTORY OF FREEDOM AND OTHER ESSAYS 82 (reprinted ed. 1922) (“the greater part of the political ideas” of John Milton and John Locke “may be found in the ponderous Latin of Jesuits who were subjects of the Spanish Crown,” such as Mariana and Suárez).
25. 3 JOHN ADAMS, A DEFENCE OF THE CONSTITUTIONS OF GOVERNMENT OF THE UNITED STATES OF AMERICA 209-10 (3rd ed. reprint, Scientia Verlag Aalen 1979) (1778).
26.Id. at 210. Jefferson described John Locke, Algernon Sidney, Aristotle, and Cicero as the four major sources of the American consensus on rights and liberty, which Jefferson distilled into the Declaration of Independence. Letter from Thomas Jefferson to Henry Lee (May 8, 1825), in 16 THE WRITINGS OF THOMAS JEFFERSON 117-19 (Andrew A. Lipscomb ed., 1903).
27. See generally 3 HUGO GROTIUS, OF THE RIGHTS OF WAR AND PEACE, IN THREE VOLUMES (Gaunt 2001) (1625) (reprint of 1737 English translation by John Morrice of the 1724 annotated French translation by Jean Barbeyrac).
28. SAMUEL PUFENDORF, OF THE LAW OF NATURE AND NATIONS 183 (Basil Kennett trans., 4th ed. 1729).
29. See DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). That to secure these Rights, Governments are instituted among Men, deriving their just powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to
30. Cruikshank, 92 U.S. at 551. The right to assemble, with which the right to arms was construed in pari materia:
Id. at 551-53 (including similar analysis regarding the “The right . . . of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.”).
31. Even if one claims that there is no such thing as natural law, the right of self- defense is so well-established in the common law and in long-standing American tradition that it is precisely the type of unemunerated right which requires constitutional recognition. See, e.g., Lawrence v. Texas, 539 U.S. 558, 588 (2003) (Scalia, J., dissenting) (unenumerated rights should be constitutionally recognized if they are “deeply rooted in this Nation’s history and tradition”) (citing Washington v. Glucksberg, 521 U.S. 702, 721 (1997)); Montana v. Egelhoff, 518 U.S. 37, 56 (1996) (Scalia, J., plurality op.) (“the right to have a jury consider self-defense evidence” has strong support in the “historical record” and may be “fundamental”); Eugene Volokh, State Constitutional Rights to Keep and Bear Arms, 11 TEX. REV. L. & POL. 191, 208-17 (2006) (many state right to arms provisions explicitly mention self-defense).
32.See Heller, 128 S. Ct. at 2822-47 (Stevens, J., dissenting).
33. See JOSEPH STORY, A FAMILIAR EXPOSITION OF THE CONSTITUTION OF THE UNITED STATES § 1000-01 (Harper Bros. 1855) (1840).
34. Heller, 128 S. Ct. at 2798 (“One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia.”) (citing STORY, supra note 33, at § 450).
35. Heller, 128 S. Ct. at 2798, 2800, 2806 (citations omitted).
36. Id. at 2839-41 (Stevens, J., dissenting) (citations omitted). 37.Id. at 2837-38 (Stevens, J., dissenting).
38. “They [the proposed Bill of Rights] relate 1st. to private rights— . . . fallacy on both sides—espec[iall]y as to English Decln. of Rts—1. mere act of parl[iamen]t. 2. no freedom of press—Conscience . . . attainders—arms to Protest[an]ts.” Notes for Speech in Congress (June 8, 1789), in 12 THE PAPERS OF JAMES MADISON 193-94 (Charles F. Hobson et. al. eds., 1979). One can only speculate about why the Heller majority did not mention Madison’s notes. The notes were certainly discussed in one of the most important amicus briefs. See Brief of Amicus Curiae Academics for the Second Amendment in Support of the Respondent at 34-35, District of Columbia v. Heller 128 S. Ct. 2783 (2008) (No. 07-290), available at http://www.gurapossessky.com/news/parker/documents/07290bsacAcademicsforSecondAmendment.pdf. Oral argument made it clear that, at least, Justice Kennedy had read that brief. Perhaps Justice Scalia was being absolutely faithful to the “original public meaning” theory of interpretation. That is, consider what the public thought the constitutional language meant; do not try to divine “original intent” two centuries later by looking at diaries of the Founders.
39. U.S. CONST. amend. II.
40. Heller, 128 S. Ct. at 2797.
41.Id. at 2831 (Stevens, J., dissenting).
42. See id. at 2797-99.
43.Id. at 2822-25 (Stevens, J., dissenting).
44.Id. at 2793. 45. Brief for Brady Center to Prevent Gun Violence et al. as Amici Curiae Supporting Petitioner at 17-18 n.6, Dist. of Columbia v. Heller, 128 S. Ct. 2783 (2008) (No. 07-290), available at http://www.gurapossessky.com/news/parker/documents/07290tsacBradyCenter.pdf (pointing out that the state militia systems pre-dated the Constitution, but providing no evidence that militia service was a right). For history of militia litigation in the United States, and the near-total absence of the Second Amendment therefrom, see generally J. Norman Heath, Exposing the Second Amendment: Federal Preemption of State Militia Legislation, 79 U. DET. MERCY L. REV. 39 (2001).
46. See Heller, 128 S. Ct. at 2847-70 (Breyer, J., dissenting). Justice Breyer supported the argument by pointing to gun restrictions in a few cities in early America. The centerpiece of the argument was a Massachusetts law which prevented taking loaded guns into buildings in Boston. Id. at 2849 (Breyer, J., dissenting) (Statute providing a fine for “‘any Person’ who ‘shall take into any Dwelling-House, Stable, Barn, Out-house, Warehouse, Store, Shop, or other Building, within the Town of Boston, any . . . Fire-Arm, loaded with, or having Gun-Powder.’”). Justice Breyer took the case as standing for the possible constitutionality of bans on self-defense guns in the home:
47. Id. at 2848 (Breyer, J., dissenting). The balancing test is offered arguendo, since Justice Breyer explains that he is also joining the Stevens dissent, which argues that there is an individual Second Amendment right, but that right has no application outside of militia service. Id. at 2848, 2870 (Breyer, J., dissenting).
48. Id. at 2866 (Breyer, J., dissenting) (“at most a subsidiary interest”).
49. See id. at 2821.
50.Id. at 2798 (citing WILLIAM BLACKSTONE, 1 COMMENTARIES *139-40, 144). 51.See Heller, 128 S. Ct. at 2793-2809.
52. See Kopel et al., supra note 17, at 121-22; see also David B. Kopel, The Torah and Self-Defense, 109 PENN. ST. L. REV. 17, 29-36 (2004); David B. Kopel, The Religious Roots of the American Revolution and the Right to Keep and Bear Arms, 17 J. ON FIREARMS & PUB. POL’Y 167, 173 (2005) (early Americans’ views of ancient Israel as their role model).
53. Cruikshank, 92 U.S. at 551.
54. See Nicholas J. Johnson, Self-Defense?, 2 J. L. ECON. & POL’Y 187, 193-95 (2006).
55.E.g., Vera Bergelson, Rights, Wrongs, and Comparative Justifications, 28 CARDOZO L. REV. 2481, 2488 (2007). All public officials—a policeman performing a valid arrest, a sheriff taking possession of the debtor’s property pursuant to a court judgment, or an executioner giving the prisoner a lethal injection in accordance with the execution order—act under the right to act that way. In contrast, people acting in self- defense, or pursuant to necessity or parental authority act merely under a privilege. Id. 56. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 466 (1958).
57.See David B. Kopel, The Self-Defense Cases: How the United States Supreme Court Confronted a Hanging Judge in the Nineteenth Century and Taught Some Lessons for Jurisprudence in the Twenty-First, 27 AM. J. CRIM. L. 293, 322 (2000).
58. Brown v. United States, 256 U.S. 335, 343 (1921) (also declaring there is no duty to retreat). 59. See Kopel, supra note 57, at 296.
60.E.g., State v. Farley, 19 P.3d 1258, 1260-61 (Ariz. Ct. App. 2001) (upholding statutory requirement that criminal defendant prove self-defense by preponderance of evidence).
61.E.g., Black v. State, 829 N.E.2d 607, 609, 611-12 (Ind. Ct. App. 2005) (based on self-defense right in Indiana Constitution).
62. See David Morton, Gunning For the World, FOREIGN POL’Y, Jan/Feb 2006, at 58: If you asked people in Bosnia, Botswana, or, for that matter, Brazil, what the Second Amendment of the U.S. Constitution stands for, most of them would probably have no idea. But the unexpected defeat of Brazil’s proposed gun prohibition suggests that, when properly packaged, the “right to keep and bear arms” message strikes a chord with people of very different backgrounds, experiences, and cultures, even when that culture has historically been anti-gun. In fact, the Second Amendment may be a more readily exportable commodity than gun control advocates are willing to accept, especially in countries with fresh memories of dictatorship. When it is coupled with a public’s fear of crime—a pressing concern in most of the developing world—the message is tailored for mass consumption.
63.E.g., Thomas Gabor, Firearms and Self-Defence: A Comparison of Canada and the United States 22-23 (Dept. of Just., Canada, Working Document No. WD1997-3e, 1997) available at http://www.cfc-cafc.gc.ca/pol-leg/reseval/ publications/reports/1997/pdfs/selfdef_en.pdf.
64. Kopel et al., supra note 17, at 141-42. Self-defense is in the constitutions of Antigua & Barbuda, the Bahamas, Barbados, Belize, Cyprus, Grenada, Guyana, Haiti, Honduras, Jamaica, Malta, Mexico, Nigeria, Peru, Samoa, St. Kitts & Nevis, Saint Lucia, Saint Vincent and the Grenadines, Slovakia, and Zimbabwe. Id. at 138-41. The right to arms is explicit in the Constitutions of Guatemala, Haiti, Mexico, and the United States. Id. at 141.
65. Following years of public pressure, the government of the U.K. in July 2008 amended the self-defense law to clarify and protect some self-defense rights for the victims of home invasions. C.f. Criminal Justice and Immigration Act, 2008, ch. 4, § 76(7) (U.K.). Reasonable use of the force is to be judged according to the circumstances as the defender perceived them; and must consider:
66. David B. Kopel, The Right to Bear Arms and “Sensible” Gun Laws, http://www.cato-unbound.org/2008/07/18/david-kopel/the-right-to-bear-arms-and-sensiblegun- laws/ (July 18, 2008, 09:03 EST). A right of self-defense without a right to at least some defensive arms would be a right of little practical utility. It is arms—especially, firearms—which allow a weaker person to defend herself against a stronger attacker or group of attackers. It is the firearm which best makes a deterrent threat of self-defense, while allowing the victim to remain beyond the grasping distance of the stronger assailant(s).
67. Paul Letiwa, Why Herders Won’t Surrender Their Firearms Just Yet, THE NATION (Kenya), Apr. 30, 2008, available at http://allafrica.com/stories/200804300138.html.
Id.; see also Ng’ang’a Mbugua, Law Should Be Changed to Free Guns, THE NATION
(Kenya), Apr. 25, 2008, available at http://allafrica.com/stories/printable/200804251276.html (noting success of armed defense program of the people of the Kerio Valley).
Id.; see David B. Kopel, Paul Gallant, & Joanne D. Eisen, Human Rights and Gun Confiscation, 26 QUINNIPIAC L. REV. 385, 388-419 (2008) (describing gun policies in Kenya, Uganda, and South Africa).
68. See generally U.N. Human Rights Council, Sub-Comm’n on the Promotion and Prot. of Human Rights, Adoption of the Report on the Fifty-Eighth Session to the Human Rights Council: Draft Report of the Sub-Commission on the Promotion and Protection of Human Rights, U.N. Doc. A/HRC/Sub.1/58/L.11/Add.1 (Aug. 24, 2006) (prepared by Mohammed Habib Cherif), available at http://www2.ohchr.org/english/bodies/subcom/docs/58/A.HRC.Sub.1.58.L.11.Add.1.pdf.
The United Nations report on self-defense is analyzed in detail in Kopel et al., supra note 17, at 129-39, 148-55 (discussing U.N. Human Rights Council, Sub-Comm’n on the Promotion and Prot. of Human Rights, Prevention of Human Rights Violations Committed with Small Arms and Light Weapons, U.N. Doc. A/HRC/Sub.1/58/27 (July 27, 2006) (prepared by Barbara Frey), available at http://www.geneva-forum.org/Reports/20060823.pdf).
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THE NATURAL RIGHT OF SELF-DEFENSE: