Canadian Unlicensed Firearms Owners Association
Association canadienne des propriétaires d’armes sans permis

Armes for Their Defense;
An Inherited, Historical, Canadian Right

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January 2008

David B. Kopel*


I.  THE NATURAL LAW IN RIGHT OF ARMED DEFENSE                             
            A. In the Heller Case                                                           

            B. Roots of the Right                                                         



            A. Natural Right and the Stevens Dissent                                   
            B. Natural Right and the Breyer 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. 




            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  



            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  



            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
Research Director, Independence Institute, Golden, Colorado. Associate Policy  Analyst, Cato Institute, Washington, D.C. J.D., University of Michigan, 1985. In District  of Columbia v. Heller, Kopel wrote the amicus brief for the International Law Enforcement  Educators & Trainers Association, and other law enforcement organizations and leaders; the  brief was cited four times in Justice Breyer’s opinion. Kopel was one of three lawyers who  joined Alan Gura at the Supreme Court counsel table on March 18, 2008, to assist Gura in his presentation of the oral argument. 

 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:

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  



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:   

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: 
was designed to abrogate the right of self-defense, and if its effect be to do so, it is  then more than possible that its constitutional validity might well be questioned,  for that it whittles away a part of that “natural right to life, liberty and the  enjoyment of the gains of their own industry,” which is vouchsafed to the citizen  by the organic law. 

(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:
 It is the necessity of the case, and that only which justifies a killing—on that  necessity the right to kill rests, and when the necessity ceases, the right no longer  exists. This limitation, which the law puts on the right of self-defense, is founded  on the same law of nature and reason which gives the right of self-defense; and it  does not restrain it, but protects it and prevents its abuse by those who would,  under its color and the pretense of defense, seek to gratify revenge or an occasion  to kill.    

25 Tex. 174, 177 (Tex. 1860).
 Even in the South on the eve of the Civil War, the natural right of self-defense   guaranteed the right to a free black to use violence against a white law enforcement officer:  The conviction of the defendant may involve the proposition that a free negro is  not justified, under any circumstances, in striking a white man. To this, we cannot  yield our assent. . . . An officer of the town having a notice to serve on the  defendant, without any authority whatever, arrests him and attempts to tie him!!  Is not this gross oppression? For what purpose was he to be tied? What degree of  cruelty might not the defendant reasonably apprehend after he should be entirely  in the power of one who had set upon him in so highhanded and lawless a  manner? Was he to submit tamely?—Or, was he not excusable for resorting to the  natural right of self-defense? Upon the facts stated, we think his Honor ought to  have instructed the jury to find the defendant not guilty. There is error. Venire de  novo.  

State v. Davis, 52 N.C. (7 Jones) 52, 53, 55 (N.C. 1859). 
A decision from a few decades earlier shows the connections with the English and American common law natural right:  the right of necessary defence, in the protection of a man’s person or property, is  derived to him from the law of nature, and should never be unnecessarily  restrained by municipal regulation. However proper it may be for every well  ordered community to be tender of the public peace, and careful of the lives of its  citizens, there can be neither policy or propriety in extending this tenderness and  care so far as to protect the robber, the burglar and the nocturnal thief, by an  unnecessary restraint of the honest citizen’s natural right of self-defence. Sir  Matthew Hale, in speaking on this subject, says, “the right of self-defence in these  cases is founded in the law of nature, and is not, nor can be superceded by the law  of society. Before societies were formed, the right of self defence resided in  individuals, and since, in cases of necessity, individuals incorporated into society,  can not resort for protection to the law of society, that law with great propriety and  strict justice considereth them as still, in that instance, under the protection of the  law of nature.”   

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).  
In the case of justifiable self-defence, the injured party may repel force by force in  defence of his person, habitation, or property, against one who manifestly  intendeth and endeavors by violence or surprise, to commit a known felony upon  either. It is justly considered that the right in such case, is founded in the law of  nature, and is not, nor can be superseded by any law of society. There being at the  time no protection from society, the individual is remitted for protection to the law  of nature.  

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.   


21. GRATIAN, THE TREATISE ON LAWS 6-7 (Augustine Thompson & James Gordley  trans., 1993) (Distinction 1, C.7, §§ 2-3). In the original: 
Ius naturale est commune omnium nationum, eo quod ubique instinctu naturae,  non constitutione aliqua habetur, ut uiri et feminae coniunctio, liberorum  successio et educatio, communis omnium possessio et omnium una libertas,  acquisitio eorum, quae celo, terra marique capiuntur; item depositae rei uel  commendatae pecuniae restitutio, uiolentiae per uim repulsio. Nam hoc, aut si  quid huic simile est, numquam iniustum, sed naturale equumque habetur.   

See Isidore, Etymologiae V, 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. (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:
 existed long before the adoption of the Constitution of the United States. In fact,  it is, and always has been, one of the attributes of citizenship under a free  government. It ‘derives its source,’ to use the language of Chief Justice Marshall,  in Gibbons v. Ogden, ‘from those laws whose authority is acknowledged by  civilized man throughout the world.’ It is found wherever civilization exists. It  was not, therefore, a right granted to the people by the Constitution. The  government of the United States when established found it in existence, with the  obligation on the part of the States to afford it protection.   

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).  


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 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 (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: 
Even assuming, as the majority does . . . that this law included an implicit self- defense exception, it would nevertheless have prevented a homeowner from  keeping in his home a gun that he could immediately pick up and use against an  intruder. Rather, the homeowner would have had to get the gunpowder and load it  into the gun, an operation that would have taken a fair amount of time to perform. 
Id. (Breyer, J., dissenting). Justice Breyer appears to have misread the statute, which only  outlawed the taking of guns into buildings. The statute did not prohibit loading a gun within  one’s own home or business, and keeping it loaded therein. See id. (Breyer, J., dissenting).   

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 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: 
(a) that a person acting for a legitimate purpose may not be able to weigh to a  nicety the exact measure of any necessary action; and (b) that evidence of a  person’s having only done what the person honestly and instinctively thought was  necessary for a legitimate purpose constitutes strong evidence that only reasonable  action was taken by that person for that purpose. 
Id.; see also Richard Edwards & Chris Hope, You Have the Right to Shoot Dead a Burglar,  DAILY TELEGRAPH (London), July 16, 2008 at 1, available at 2008 WLNR 13269970.   

66. David B. Kopel, The Right to Bear Arms and “Sensible” Gun Laws, 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
“How can the Government ask us to surrender our guns when we know very well  that there is no security for us? If we give out our firearms, say today, who will  protect us when the neighbouring tribes strike? How about our stolen livestock?  Who is going to return them to us?” Mr Lengilikwai talks with bitterness.   

Id.; see also Ng’ang’a Mbugua, Law Should Be Changed to Free Guns, THE NATION   

(Kenya), Apr. 25, 2008, available at (noting success of armed defense program of the people of the Kerio Valley). 
In the past, critics of liberalising access to firearms have argued that they would  put ordinary people’s lives in peril because even squabbles in the streets or the  bedroom would be resolved by bullets. Incidentally, such incidents are few and  far between in the Kerio Valley despite the easy accessibility of AK- 47s as well  as the relatively low levels or education and social sophistication. . . . If Kenya is  to achieve long-lasting stability, it ought to borrow a leaf from the US, whose  constitution gives the people the right to bear arms and form militias for their own  defence should the armed forces fail them, as happened in Kenya after the  December elections.  

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   

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  

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