Heller’s Lesson for the World<\/p>\n
The U.S. Supreme Court’s decision in District of Columbia v. Heller constitutionalized the right of self-defense, and described self-defense as a natural, inherent right. 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.<\/p>\n
Open PDF in Browser<\/a><\/p>\n 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, volume 76, p. 138 – 179<\/p>\n 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<\/p>\n 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<\/p>\n Why Herders Won’t Surrender Their Firearms Just Yet, THE NATION (Kenya)<\/p>\n 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<\/p>\n see also Ng’ang’a Mbugua, Law Should Be Changed to Free Guns, THE NATION (Kenya)<\/p>\n Electronic copy available at: http:\/\/ssrn.com\/abstract=1172255 Heller’s Lesson for the World The U.S. Supreme Court’s decision in District of Columbia v. Heller constitutionalized the right of self-defense, and described self-defense as a natural, inherent right. 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 … Continue reading “The Natural Right of Self-Defense”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"parent":0,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"footnotes":""},"class_list":["post-56536","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/pages\/56536","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=56536"}],"version-history":[{"count":5,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/pages\/56536\/revisions"}],"predecessor-version":[{"id":56574,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/pages\/56536\/revisions\/56574"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=56536"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}\n
\nKOPEL MACRO DRAFT 12\/7\/2008 12:52AM
\nTHE NATURAL RIGHT OF SELF-DEFENSE:
\nHELLER\u2019S LESSON FOR THE WORLD
\nDavid B. Kopel\u2020
\nINTRODUCTION ……………………………………………………………………………… 999
\nI. THE NATURAL LAW IN RIGHT OF ARMED DEFENSE ………………….. 999
\nA. In the Heller Case ………………………………………………………….. 999
\nB. Roots of the Right ………………………………………………………… 1004
\nII. THE NATURAL RIGHT\u2019S IMPLICATIONS FOR THE HELLER
\nDISSENTS …………………………………………………………………………… 1007
\nA. Natural Right and the Stevens Dissent ……………………………. 1007
\nB. Natural Right and the Breyer Dissent …………………………….. 1009
\nIII. THE NATURAL RIGHT\u2019S IMPLICATION FOR FUTURE LEGAL
\nDEVELOPMENTS …………………………………………………………………. 1011
\nA. Implications for American Law ……………………………………… 1011
\nB. Implications for Foreign Law ………………………………………… 1013
\nINTRODUCTION
\nOne of the most important elements of the District of Columbia v.
\nHeller decision is the natural law.1 Analysis of natural law in Heller shows
\nwhy Justice Stevens\u2019 dissent is clearly incorrect, and illuminates a crucial
\nweakness in Justice Breyer\u2019s dissent. The constitutional recognition of the
\nnatural law right of self-defense has important implications for American
\nlaw, and for foreign and international law.
\nI. THE NATURAL LAW IN RIGHT OF ARMED DEFENSE
\nA. In the Heller Case
\nHeller reaffirms a point made in the 1876 Cruikshank case.2 The right
\n\u2020 Research Director, Independence Institute, Golden, Colorado. Associate Policy
\nAnalyst, Cato Institute, Washington, D.C. J.D., University of Michigan, 1985. In District
\nof Columbia v. Heller, Kopel wrote the amicus brief for the International Law Enforcement
\nEducators & Trainers Association, and other law enforcement organizations and leaders; the
\nbrief was cited four times in Justice Breyer\u2019s opinion. Kopel was one of three lawyers who
\njoined Alan Gura at the Supreme Court counsel table on March 18, 2008, to assist Gura in
\nhis presentation of the oral argument.
\n1. 128 S. Ct. 2783 (2008).
\n2. See United States v. Cruikshank, 92 U.S. 542, 553 (1876) (stating that the Second
\nElectronic copy available at: http:\/\/ssrn.com\/abstract=1172255
\nKOPEL MACRO DRAFT 12\/7\/2008 12:52AM
\n1000 Syracuse Law Review [Vol. 59:XXX
\nto arms (unlike, say, the right to grand jury indictment) is not a right which
\nis granted by the Constitution. It is a pre-existing natural right which is
\nrecognized and protected by the Constitution:
\n[I]t has always been widely understood that the Second Amendment,
\nlike the First and Fourth Amendments, codified a pre-existing right. The
\nvery text of the Second Amendment implicitly recognizes the preexistence
\nof the right and declares only that it \u201cshall not be infringed.\u201d
\nAs we said in United States v. Cruikshank, \u201c[t]his is not a right granted
\nby the Constitution. Neither is it in any manner dependent upon that
\ninstrument for its existence. The Second [A]mendment declares that it
\nshall not be infringed. . . .\u201d3
\nAs Heller pointed out, the 1689 English Declaration of Right
\n(informally known as the English Bill of Rights) was a \u201cpredecessor to our
\nSecond Amendment.\u201d4 According to the Declaration: \u201cthe [s]ubjects which
\nare Protestants may have [a]rms for their [d]efence suitable to their
\n[c]onditions and as allowed by [l]aw.\u201d5 The Convention Parliament which
\nwrote the Declaration of Right stated that the right to arms for defense was
\na \u201ctrue[, ancient,] and indubitable Right[ ].\u201d6 Yet, as Joyce Malcolm has
\ndetailed, 1689 was the first time that the right to arms had been formally
\nprotected by a positive enactment of English law.7
\nThe explanation is simple. The Convention Parliament did not
\nbelieve that it was creating new rights, but simply recognizing established
\nones. Although previous Parliaments had not enacted a statute specifically
\nto protect the right of armed self-defense, British case law since 1330 had
\nlong recognized an absolute right to use deadly force against home
\ninvaders.8 The right to self-defense itself, along with its necessary
\nimplication of the right to use appropriate arms for self-defense, was
\nconsidered to be firmly established by natural law.9
\nThus, Heller quoted Blackstone\u2019s treatise (which was by far the most
\nAmendment contains powers \u201c\u2018not surrendered or restrained\u2019 by the Constitution of the
\nUnited States\u201d) (citation omitted).
\n3. Heller, 128 S. Ct. at 2797-98 (2008) (citing and quoting Cruikshank, 92 U.S. at
\n553).
\n4. Id. at 2798.
\n5. Bill of Rights, 1688, 1 W. & M., c. 2 (Eng.), available at
\nhttp:\/\/www.statutelaw.gov.uk\/content.aspx?activeTextDocId=1518621.
\n6. Id.
\n7. JOYCE LEE MALCOLM, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLOAMERICAN
\nRIGHT 117-18 (1994).
\n8. David I. Caplan & Sue Wimmershoff-Caplan, Postmodernism and the Model Penal
\nCode v. the Fourth, Fifth, and Fourteenth Amendments\u2014and the Castle Privacy Doctrine in
\nthe Twenty-First Century, 73 UMKC L. REV. 1073, 1084-1134 (2005).
\n9. See id. at 1091-92.
\nKOPEL MACRO DRAFT 12\/7\/2008 12:52AM
\n2008] The Right of Self Defense 1001
\ninfluential legal treatise in the early American republic10) explaining that
\nthe Declaration of Right protected \u201c\u2018the natural right of resistance and selfpreservation,\u2019\u201d
\nwhich was effectuated by \u201c\u2018the right of having and using
\narms for self-preservation and defence.\u2019\u201d11
\nSome other parts of the Heller opinion include citations to sources
\ndescribing the right of armed self-defense as a \u201cnatural\u201d or \u201cinherent\u201d right.
\nThe majority writes that \u201cJustice James Wilson interpreted the
\nPennsylvania Constitution\u2019s arms-bearing right, for example, as a
\nrecognition of the natural right of defense \u2018of one\u2019s person or house\u2019\u2014what
\nhe called the law of \u2018self preservation.\u2019\u201d12
\nLikewise quoted with approval is the 1846 Georgia Supreme Court
\ndecision Nunn v. State, which \u201cconstrued the Second Amendment as
\nprotecting the \u2018natural right of self-defence.\u2019\u201d13 Similarly, \u201cA New York
\narticle of April 1769 said that \u2018[i]t is a natural right which the people have
\nreserved to themselves, confirmed by the Bill of Rights, to keep arms for
\ntheir own defence.\u201d14
\nThus, the Heller opinion concludes: \u201c[a]s the quotations earlier in this
\nopinion demonstrate, the inherent right of self-defense has been central to
\nthe Second Amendment right.\u201d15 Heller\u2019s recognition of self-defense as a
\nnatural right was consistent with the same view in The Federalist,16 in most
\nstate constitutions,17 and in case law from before the Civil War to modern
\n10. Heller, 128 S. Ct. at 2798 (writing that \u201cBlackstone, whose works, we have said,
\n\u2018constituted the preeminent authority on English law for the founding generation,\u2019, cited the
\narms provision of the Bill of Rights as one of the fundamental rights of Englishmen.\u201d (citing
\nAlden v. Maine, 527 U.S. 706, 715 (1999))).
\n11. See id. (citing WILLIAM BLACKSTONE, 1 COMMENTARIES *139-40, 144); id. at 2972
\nn.7 (\u201cwith reference to colonists\u2019 English rights: \u2018The right of every individual to keep arms
\nfor his defence, suitable to his condition and degree; which was the public allowance, under
\ndue restrictions of the natural right of resistance and self-preservation\u2019\u201d) (citing WILLIAM
\nALEXANDER DUER, OUTLINES OF THE CONSTITUTIONAL JURISPRUDENCE OF THE UNITED
\nSTATES 31-32 (1833)).
\n12. Id. at 2793 (citations omitted).
\n13. Id. at 2809 (citing 1 Ga. 243, 251 (1846)).
\n14. Id. at 2799 (citations omitted).
\n15. Heller, 128 S. Ct. at 2817. The opinion includes other statements that self-defense
\nis a right. See id. at 2820 (\u201cIt is inconceivable that this law would have been enforced
\nagainst a person exercising his right to self-defense on New Year\u2019s Day against such
\ndrunken hooligans.\u201d); see also id. at 2801 (\u201cJustice Breyer\u2019s assertion that individual selfdefense
\nis merely a \u2018subsidiary interest\u2019 of the right to keep and bear arms, is profoundly
\nmistaken. He bases that assertion solely upon the prologue\u2014but that can only show that
\nself-defense had little to do with the right\u2019s codification; it was the central component of the
\nright itself.\u201d) (internal citation omitted).
\n16. THE FEDERALIST NO. 28 (Alexander Hamilton) (\u201cthat original right of self-defense
\nwhich is paramount to all positive forms of government\u201d).
\n17. David B. Kopel, Paul Gallant, & Joanne D. Eisen, The Human Right of SelfKOPEL
\nMACRO DRAFT 12\/7\/2008 12:52AM
\n1002 Syracuse Law Review [Vol. 59:XXX
\ntimes.18
\nDefense, 22 BYU J. PUB. L. 43, 101-02, 128 (2007) (Thirty-five U.S. state constitutions
\naffirm that human rights are inherent, natural, or created by God; thirty-seven state
\nconstitutions affirm a right of self-defense, sometimes, but not always, articulated in the
\nsame clause as right to arms).
\n18. See, e.g., Finch v. State, 445 So. 2d 964, 966 (Ala. Crim. App. 1983) (\u201cWe agree
\nwith proposition expounded in Blankenship that: \u2018Self-defense is a common instinct and a
\nnatural right, and, as we understand it, means standing one\u2019s ground and repelling, as a
\nmeans of self-protection, unprovoked force with force.\u2019\u201d) (citing Blankenship v. State, 11
\nAla. App. 125, 128 (1914)); St. Louis S.W. Ry. Co. v. Berger, 44 S.W. 809, 814 (Ark. 1898)
\n(Railroad cannot be sued because of an employee\u2019s act of lawful self-defense\u2014the
\nemployee\u2019s self-defense is \u201cnot within any employment he may make, being a natural right
\nwhich he can neither surrender, nor gratify by any contractual act. . . .\u201d); People v. Watson,
\n133 P. 298, 303 (Cal. 1913) (\u201cWhile defendant\u2019s conduct with the woman was immoral, it
\ndid not take away from him the natural right of self-defense. . . .\u201d); People v. Young, 825
\nP.2d 1004, 1007 (Colo. Ct. App. 1991) (citing the 1960 Colorado Supreme Court decision
\nVigil v. People that \u201cself-defense is a natural right which is based on the law of selfpreservation\u201d)
\n(citing 353 P.2d 82, 85-96 (Colo. 1960)); People v. Burns, 133 N.E. 263, 265
\n(Ill. 1921) (\u201cWhen a citizen exercises the right of self-defense, he is not taking the law into
\nhis own hands. He is simply exercising a natural right which the law recognizes and
\nprotects.\u201d); Thornton v. Taylor, 39 S.W. 830, 831 (Ky. Ct. App. 1897) (\u201cThe right of selfdefense
\nis a natural right. . .\u201d); Nat\u2019l Life & Accident Ins. Co. v. Turner, 174 So. 646, 647
\n(La. Ct. App. 1937) (\u201cThe right of self-defense is a natural right.\u201d); Allen v. Currie, 8 La.
\nApp. 30, available at 1928 WL 3792, at *3 (La. Ct. App. 1928) (\u201ceven men of mature years
\nwill, in the exercise of their natural right of self-defense, meet or repulse any aggressor who
\nmay attempt to encroach on their rights. This is unquestionably true.\u201d); State v. Arnett, 167
\nS.W. 526, 529 (Mo. 1914) (If statute against exhibiting a weapon in an angry manner:
\nwas designed to abrogate the right of self-defense, and if its effect be to do so, it is
\nthen more than possible that its constitutional validity might well be questioned,
\nfor that it whittles away a part of that \u201cnatural right to life, liberty and the
\nenjoyment of the gains of their own industry,\u201d which is vouchsafed to the citizen
\nby the organic law.
\n(citation omitted)); R.R. Comm\u2019n of Ohio v. Hocking Valley Ry. Co., 91 N.E. 865, 866
\n(Ohio 1910) (\u201cBy universal consent self-defense is recognized as a natural right of every
\nindividual and of every collection of individuals.\u201d); Robinson v. Territory of Oklahoma, 85
\nP. 451, 455 (Okla. 1905) (\u201cThe right of self-defense is founded upon the natural right of a
\nman to protect himself against the unlawful assault upon him by another.\u201d), rev\u2019d, Robinson
\nv. Territory of Oklahoma, 148 F. 830 (C.C. Okla. 1906); Hummel v. State, 99 P.2d 913, 917
\n(Okla. Crim. App. 1940) (\u201cThe law adopts the natural right of self-defense, because it
\nconsiders the future process of law an inadequate remedy for present injuries accompanied
\nwith force.\u201d); Konigsberger v. Harvey, 7 P. 114, 115 (Or. 1885) (\u201cThe law upon that subject
\nis the same as it was 500 years ago. The right of self-defense is a natural right, inherent in
\nmankind. . . .\u201d); State v. McGonigle, 45 P. 20, 22 (Wash. 1896) (\u201cThe plea of self-defense
\nrests on the natural right. . . .\u201d); Miller v. State, 119 N.W. 850, 857 (Wis. 1909) (\u201cthe divine
\nright of self-defense\u201d). It also written in Isaacs v. State, that:
\nIt is the necessity of the case, and that only which justifies a killing\u2014on that
\nnecessity the right to kill rests, and when the necessity ceases, the right no longer
\nexists. This limitation, which the law puts on the right of self-defense, is founded
\non the same law of nature and reason which gives the right of self-defense; and it
\ndoes not restrain it, but protects it and prevents its abuse by those who would,
\nunder its color and the pretense of defense, seek to gratify revenge or an occasion
\nto kill.
\nKOPEL MACRO DRAFT 12\/7\/2008 12:52AM
\n2008] The Right of Self Defense 1003
\n25 Tex. 174, 177 (Tex. 1860).
\nEven in the South on the eve of the Civil War, the natural right of self-defense
\nguaranteed the right to a free black to use violence against a white law enforcement officer:
\nThe conviction of the defendant may involve the proposition that a free negro is
\nnot justified, under any circumstances, in striking a white man. To this, we cannot
\nyield our assent. . . . An officer of the town having a notice to serve on the
\ndefendant, without any authority whatever, arrests him and attempts to tie him!!
\nIs not this gross oppression? For what purpose was he to be tied? What degree of
\ncruelty might not the defendant reasonably apprehend after he should be entirely
\nin the power of one who had set upon him in so highhanded and lawless a
\nmanner? Was he to submit tamely?\u2014Or, was he not excusable for resorting to the
\nnatural right of self-defense? Upon the facts stated, we think his Honor ought to
\nhave instructed the jury to find the defendant not guilty. There is error. Venire de
\nnovo.
\nState v. Davis, 52 N.C. (7 Jones) 52, 53, 55 (N.C. 1859).
\nA decision from a few decades earlier shows the connections with the English and
\nAmerican common law natural right:
\nthe right of necessary defence, in the protection of a man\u2019s person or property, is
\nderived to him from the law of nature, and should never be unnecessarily
\nrestrained by municipal regulation. However proper it may be for every well
\nordered community to be tender of the public peace, and careful of the lives of its
\ncitizens, there can be neither policy or propriety in extending this tenderness and
\ncare so far as to protect the robber, the burglar and the nocturnal thief, by an
\nunnecessary restraint of the honest citizen\u2019s natural right of self-defence. Sir
\nMatthew Hale, in speaking on this subject, says, \u201cthe right of self-defence in these
\ncases is founded in the law of nature, and is not, nor can be superceded by the law
\nof society. Before societies were formed, the right of self defence resided in
\nindividuals, and since, in cases of necessity, individuals incorporated into society,
\ncan not resort for protection to the law of society, that law with great propriety and
\nstrict justice considereth them as still, in that instance, under the protection of the
\nlaw of nature.\u201d
\nGray v. Combs, 30 Ky. (7 J.J. Marsh) 478, 481 (Ky. 1832). Sir Matthew Hale was Lord
\nChief Justice of England from 1671-76, and one of the most influential of all common law
\njudges and treatise authors. The quote actually appears to be from MICHAEL FOSTER,
\nCROWN CASES AND CROWN LAW 273-74 (photo reprint. 1982) (1762). Foster was a judge of
\nthe Court of King\u2019s Bench from 1745 to 1763, and was much respected by Blackstone. The
\nquote, with attribution to Foster, appears in the 1847 American annotated edition of
\nMatthew Hale\u2019s History of the Pleas of the Crown. See MATTHEW HALE, 1 HISTORY OF THE
\nPLEAS OF THE CROWN 478 n.1 (W.A. Stokes & A. Ingersoll eds., 1847) (1732) (note added
\nby editor). Because the 1847 \u201cfirst American edition\u201d of Hale post-dates the 1832 Kentucky
\ncourt decision, it seems probable that the Kentucky court was using an English edition of
\nHale which also included an editor\u2019s annotation with the Foster language.
\nTo muddy the trail a little further, part of the quote appears in Parrish v.
\nCommonwealth, citing to Hale as quoted in \u201cRutherforth Institutes\u201d\u2014which is a reference
\nto Thomas Rutherforth, Institutes of Natural Law: Being the Substance of a Course of
\nLectures on Grotius De Jure Belli Et Pacis, a series of English-language lectures on Grotius
\nand natural law; Rutherforth\u2019s treatise was very popular in the United States in the
\nEighteenth and Nineteenth centuries. See 81 Va. 1, 4 (Va. 1884) (citing THOMAS
\nRUTHERFORTH, INSTITUTES OF NATURAL LAW: BEING THE SUBSTANCE OF A COURSE OF
\nLECTURES ON GROTIUS DE JURE BELLI ET PACIS 187-88 (1832)). Cf. Commonwealth v.
\nRiley, Thacher\u2019s Criminal Cases 471, 474-75 (Boston Mun. Ct., Mass., 1837) (quoting
\nFoster).
\nKOPEL MACRO DRAFT 12\/7\/2008 12:52AM
\n1004 Syracuse Law Review [Vol. 59:XXX
\nB. Roots of the Right
\nAlthough some modern scholars deny that natural law exists, there is
\nno dispute that the Founders strongly believed in it.19 In a constitutional
\nsense, the natural law basis of the right to armed self-defense is part of the
\noriginal public meaning of the Second Amendment. That human rights
\nwere inherent, and not granted by government, was, after all, the basis on
\nwhich the nation was created: \u201cWe hold these truths to be self-evident . . .
\nthat [all men] are endowed by their Creator with certain unalienable
\nRights. . . .\u201d20
\n\u201cNatural law\u201d as a term of legal art was originally based on Catholic
\nlegal thought. In the twelfth century, Gratian\u2019s \u201cTreatise of the Discordant
\nCanons\u201d consolidated and synthesized disparate sources in various canon
\nlaws (church laws). He began with an explanation of natural law:
\nNatural law is common to all nations because it exists everywhere
\nthrough natural instinct, not because of any enactment. For example: the
\nIn the case of justifiable self-defence, the injured party may repel force by force in
\ndefence of his person, habitation, or property, against one who manifestly
\nintendeth and endeavors by violence or surprise, to commit a known felony upon
\neither. It is justly considered that the right in such case, is founded in the law of
\nnature, and is not, nor can be superseded by any law of society. There being at the
\ntime no protection from society, the individual is remitted for protection to the law
\nof nature.
\nId.
\n19. See generally, e.g., JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF
\nJUDICIAL REVIEW (1980). Ely, who denies natural law, argues that judicial review should be
\nlimited to situations where the ordinary democratic process has failed to protect the rights of
\nminorities. Id. at 135-85. His theory would lead to the same result in Heller. Every state
\nlegislature in the United States includes representatives from urban, suburban, and rural
\ndistricts. The diversity of constituencies helps ensure that legislators have a diversity of life
\nexperiences, and makes it possible to legislators to explain to their colleagues aspects of
\ndaily life which may be unfamiliar. For example, a rural legislator may not understand from
\npersonal experience how big-city traffic jams waste so much time for suburban parents who
\nare picking up children from school or daycare, and shuttling them to sports or music
\nlessons; but the rural legislator can learn about the problem by talking to her suburban
\ncolleagues. Similarly, an urban legislator may have no personal understanding of the
\ntraditional role of the shooting sports in American life, but a rural legislator can explain it to
\nher. The District of Columbia, however, is a compact and densely-populated city. Its
\nmembers represent only urban areas, so the Council necessarily suffers from a unique lack
\nof intellectual and life-experience diversity, compared to state legislators. Moreover, the
\ncurrent Council\u2019s predecessors worked to eradicate the culture of legitimate firearms usage
\nwithin the District; zoning rules outlaw indoor shooting ranges throughout the District.
\nBecause of the urban-only structure of the District\u2019s government, it is uniquely susceptible
\nto bigotry and irrational prejudice against law-abiding gun owners. To cite but one
\nexample, the District was the only government in the United States which forbade legal
\nfirearms owners from using their guns for self-defense in the home.
\n20. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
\nKOPEL MACRO DRAFT 12\/7\/2008 12:52AM
\n2008] The Right of Self Defense 1005
\nunion of men and women, the succession and rearing of children, the
\ncommon possession of all things, the identical liberty of all, or the
\nacquisition of things that are taken from the heavens, earth, or
\nsea, as well as the return of a thing deposited or of money entrusted to
\none, and the repelling of violence by force. This, and anything similar,
\nis never regarded as unjust but is held to be natural and equitable.21
\nGratian\u2019s formulation of the natural right of \u201crepelling violence by force\u201d
\nwas similar to an expression of the same principle in Roman law.22
\nIn the five centuries from Gratian to the American Constitution, the
\nconcept of natural law, including natural rights, was developed by Catholic
\nscholars such as Thomas Aquinas, Francisco de Vitoria, Juan de Mariana,
\nand Francisco Su\u00e1rez (who called self-defense \u201cthe greatest of all rights\u201d).
\nFrom the personal right of self-defense against lone criminals, they derived
\nthe people\u2019s right of self-defense against criminal, tyrannical
\ngovernments.23
\nFew Americans were familiar with these Catholic scholars, except for
\nAquinas. The Anglo-Americans learned the language of natural rights,
\nincluding the natural right of self-defense, from Protestant thinkers who
\nhad adopted the Catholic self-defense theories. The first of these writers
\nwere the persecuted Protestants of sixteenth-century France and England,
\nincluding Theodore Beza, Peter Martyr Vermigli, and Christopher
\n21. GRATIAN, THE TREATISE ON LAWS 6-7 (Augustine Thompson & James Gordley
\ntrans., 1993) (Distinction 1, C.7, \u00a7\u00a7 2-3). In the original:
\nIus naturale est commune omnium nationum, eo quod ubique instinctu naturae,
\nnon constitutione aliqua habetur, ut uiri et feminae coniunctio, liberorum
\nsuccessio et educatio, communis omnium possessio et omnium una libertas,
\nacquisitio eorum, quae celo, terra marique capiuntur; item depositae rei uel
\ncommendatae pecuniae restitutio, uiolentiae per uim repulsio. Nam hoc, aut si
\nquid huic simile est, numquam iniustum, sed naturale equumque habetur.
\nSee Isidore, Etymologiae V, http:\/\/www.thelatinlibrary.com\/isidore\/5.shtml. Like selfdefense,
\nthe natural law right of marriage and child-raising is not enumerated in the United
\nStates Constitution, but is a constitutionally-protected fundamental right. See, e.g., Zablocki
\nv. Redhail, 434 U.S. 374, 383-84 (1978) (marriage as a fundamental right); Meyer v.
\nNebraska, 262 U.S. 390, 399 (1923) (raising children).
\n22. The key Roman law rules for self-defense were \u201carms may be repelled by arms\u201d
\nand \u201cit is permissible to repel force by force.\u201d DIG. 43.16.1.27 (Ulpian, Edict 69) (\u201cCassius
\nwrites that it is permissible to repel force by force, and this right is conferred by nature.
\nFrom this it appears, he says, that arms may be repelled by arms.\u201d).
\n23. See David B. Kopel, The Catholic Second Amendment, 29 HAMLINE L. REV. 520,
\n553-55, 561 (2006) (Aquinas and Mariana); Kopel et al., supra note 17, at 63-68, 70-72
\n(Vitoria and Su\u00e1rez); see generally David B. Kopel, Self-Defense in Asian Religions, 2
\nLIBERTY L. REV. 79 (2007) (Hinduism, Sikhism, Confucianism, Taoism, and [in practice]
\nBuddhism all respect self-defense as an inherent right; that the Asian religions have, in this
\nregard, quite similar attitudes to Western religions provides an important data point in
\nsupport of the theory that natural law is a real phenomenon).
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\n1006 Syracuse Law Review [Vol. 59:XXX
\nGoodman. For the Americans, the most influential were John Ponet, author
\nof A Shorte Treatise of Politike Power (1556), and the pseudonymous
\nStephanus Junius Brutus, who wrote Vindiciae Contra Tyrannos
\n(Vindication Against Tyrants) in 1579.24 According to John Adams,
\nVindiciae was one of the leading books by which England\u2019s and America\u2019s
\n\u201cpresent liberties have been established.\u201d25 Adams wrote that there were
\nthree key periods in English history where scholars addressed the problems
\nof tyranny and the proper structure of governments. The first of these,
\naccording to Adams, was the English reformation; next, when John Ponet
\nput forth \u201call the essential principles of liberty, which were afterward
\ndilated on by Sidney and Locke.\u201d26
\nThe Founders were also familiar with the great writers of international
\nlaw, who based their entire system on the foundation of the natural right of
\nself-defense. Hugo Grotius, the most important writer of all time in
\ninternational law, built the laws of international warfare by extrapolation
\nfrom the natural right of personal defense.27 Samuel von Pufendorf, who
\nextended and elaborated Grotius\u2019s work on international law and political
\nphilosophy, called self-defense the foundation of civilized society.28
\nThe Declaration of Independence affirms that governments are created
\nfor the purpose of protecting natural rights.29 Accordingly, a necessary
\n24. See generally STEPHANUS JUNIUS BRUTUS, VINDICIAE, CONTRA TYRANNOS: OR,
\nCONCERNING THE LEGITIMATE POWER OF A PRINCE OVER THE PEOPLE, AND OF THE PEOPLE
\nOVER A PRINCE (George Garnett ed., Cambridge Univ. Press 1994) (1579); JOHN PONET, A
\nSHORT TREATISE OF POLITIKE POWER (1556); see also DOUGLAS F. KELLY, THE EMERGENCE
\nOF LIBERTY IN THE MODERN WORLD: THE INFLUENCE OF CALVIN ON FIVE GOVERNMENTS
\nFROM THE 16TH THROUGH 18TH CENTURIES 44-46 (1992) (explaining Vindiciae\u2019s debt to
\nCatholic thought); JOHN ACTON, THE HISTORY OF FREEDOM AND OTHER ESSAYS 82 (reprinted
\ned. 1922) (\u201cthe greater part of the political ideas\u201d of John Milton and John Locke \u201cmay be
\nfound in the ponderous Latin of Jesuits who were subjects of the Spanish Crown,\u201d such as
\nMariana and Su\u00e1rez).
\n25. 3 JOHN ADAMS, A DEFENCE OF THE CONSTITUTIONS OF GOVERNMENT OF THE UNITED
\nSTATES OF AMERICA 209-10 (3rd ed. reprint, Scientia Verlag Aalen 1979) (1778).
\n26. Id. at 210. Jefferson described John Locke, Algernon Sidney, Aristotle, and Cicero
\nas the four major sources of the American consensus on rights and liberty, which Jefferson
\ndistilled into the Declaration of Independence. Letter from Thomas Jefferson to Henry Lee
\n(May 8, 1825), in 16 THE WRITINGS OF THOMAS JEFFERSON 117-19 (Andrew A. Lipscomb
\ned., 1903).
\n27. See generally 3 HUGO GROTIUS, OF THE RIGHTS OF WAR AND PEACE, IN THREE
\nVOLUMES (Gaunt 2001) (1625) (reprint of 1737 English translation by John Morrice of the
\n1724 annotated French translation by Jean Barbeyrac).
\n28. SAMUEL PUFENDORF, OF THE LAW OF NATURE AND NATIONS 183 (Basil Kennett
\ntrans., 4th ed. 1729).
\n29. See DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
\nThat to secure these Rights, Governments are instituted among Men, deriving
\ntheir just powers from the Consent of the Governed, that whenever any Form of
\nGovernment becomes destructive of these Ends, it is the Right of the People to
\nKOPEL MACRO DRAFT 12\/7\/2008 12:52AM
\n2008] The Right of Self Defense 1007
\nfeature of a legitimate government will be the protection of natural rights.
\nAs the Supreme Court explained in Cruikshank, the right to assemble and
\nthe right to keep and bear arms are, each, \u201cfound wherever civilization
\nexists.\u201d30 Although personal self-defense is not specifically mentioned in
\nthe Declaration of Independence, that natural right is the intellectual
\nfoundation, in Western philosophy, of the right of the people to defend all
\ntheir natural rights by using force to overthrow a tyrant.31
\nII. THE NATURAL RIGHT\u2019S IMPLICATIONS FOR THE HELLER DISSENTS
\nA. Natural Right and the Stevens Dissent
\nJustice Stevens\u2019 dissent does about as well as possible, given the facts
\navailable, on issues such as how much weight to give to the Second
\nAmendment\u2019s preamble, and whether \u201cbear arms\u201d must necessarily mean
\nthe carrying of guns only while in military service.32 Throughout the
\nopinion, he argues passionately for his interpretation, although that
\ninterpretation requires a very selective view of the evidence; the dissent is
\nalter or to abolish it, and to institute new Government, laying its Foundation on
\nsuch Principles, and organizing its Powers in such Form, as to them shall seem
\nmost likely to effect their Safety and Happiness.
\nId.
\n30. Cruikshank, 92 U.S. at 551. The right to assemble, with which the right to arms
\nwas construed in pari materia:
\nexisted long before the adoption of the Constitution of the United States. In fact,
\nit is, and always has been, one of the attributes of citizenship under a free
\ngovernment. It \u2018derives its source,\u2019 to use the language of Chief Justice Marshall,
\nin Gibbons v. Ogden, \u2018from those laws whose authority is acknowledged by
\ncivilized man throughout the world.\u2019 It is found wherever civilization exists. It
\nwas not, therefore, a right granted to the people by the Constitution. The
\ngovernment of the United States when established found it in existence, with the
\nobligation on the part of the States to afford it protection.
\nId. at 551-53 (including similar analysis regarding the \u201cThe right . . . of \u2018bearing arms for a
\nlawful purpose.\u2019 This is not a right granted by the Constitution. Neither is it in any manner
\ndependent upon that instrument for its existence.\u201d).
\n31. Even if one claims that there is no such thing as natural law, the right of selfdefense
\nis so well-established in the common law and in long-standing American tradition
\nthat it is precisely the type of unemunerated right which requires constitutional recognition.
\nSee, e.g., Lawrence v. Texas, 539 U.S. 558, 588 (2003) (Scalia, J., dissenting)
\n(unenumerated rights should be constitutionally recognized if they are \u201cdeeply rooted in this
\nNation\u2019s history and tradition\u201d) (citing Washington v. Glucksberg, 521 U.S. 702, 721
\n(1997)); Montana v. Egelhoff, 518 U.S. 37, 56 (1996) (Scalia, J., plurality op.) (\u201cthe right to
\nhave a jury consider self-defense evidence\u201d has strong support in the \u201chistorical record\u201d and
\nmay be \u201cfundamental\u201d); Eugene Volokh, State Constitutional Rights to Keep and Bear
\nArms, 11 TEX. REV. L. & POL. 191, 208-17 (2006) (many state right to arms provisions
\nexplicitly mention self-defense).
\n32. SeeHeller, 128 S. Ct. at 2822-47 (Stevens, J., dissenting).
\nKOPEL MACRO DRAFT 12\/7\/2008 12:52AM
\n1008 Syracuse Law Review [Vol. 59:XXX
\nlike the argument that a sheet of paper has only one dimension, because if
\nyou look at it from just the right angle, it appears to be a straight line. Vast
\namounts of evidence have to be willfully ignored. For example, one
\ntreatise by Justice Story describes the Second Amendment in terms which
\nare, at least arguably, not necessarily incompatible with Stevens\u2019 militiaonly
\nview.33 But another treatise by Story, which was quoted by the
\nmajority, describes the Second Amendment in terms which fit the Heller
\nmajority\u2019s view, and which are plainly contrary to the Stevens militia-only
\ntheory.34 The majority opinion discusses both treatises,35 but Stevens
\nwrites at length about the first treatise, ignores the existence of the second
\ntreatise, and provides no explanation for having done so.36
\nJustice Stevens dismisses the English Declaration of Right, and
\nBlackstone\u2019s description thereof, by contending that they addressed issues
\nwhich were not of concern to the Founders, who according to Stevens were
\nonly thinking about the state ratification debates involving state vs. federal
\npowers over the militia.37 Stevens\u2019 view is contrary to that of James
\nMadison, the author of the Second Amendment. In Madison\u2019s notes for his
\nspeech introducing the Bill of Rights into the House of Representatives, he
\ndescribed the arms rights amendment as remedying two crucial defects in
\nthe English Declaration of Right: that the right included only the Protestant
\npopulation, and that the right was, as a statutory enactment, efficacious
\nagainst the King, but not against the actions of later Parliaments.38
\n33. See JOSEPH STORY, A FAMILIAR EXPOSITION OF THE CONSTITUTION OF THE UNITED
\nSTATES \u00a7 1000-01 (Harper Bros. 1855) (1840).
\n34. Heller, 128 S. Ct. at 2798 (\u201cOne of the ordinary modes, by which tyrants
\naccomplish their purposes without resistance, is, by disarming the people, and making it an
\noffence to keep arms, and by substituting a regular army in the stead of a resort to the
\nmilitia.\u201d) (citing STORY, supra note 33, at \u00a7 450).
\n35. Heller, 128 S. Ct. at 2798, 2800, 2806 (citations omitted).
\n36. Id. at 2839-41 (Stevens, J., dissenting) (citations omitted).
\n37. Id. at 2837-38 (Stevens, J., dissenting).
\n38. \u201cThey [the proposed Bill of Rights] relate 1st. to private rights\u2014 . . . fallacy on
\nboth sides\u2014espec[iall]y as to English Decln. of Rts\u20141. mere act of parl[iamen]t. 2. no
\nfreedom of press\u2014Conscience . . . attainders\u2014arms to Protest[an]ts.\u201d Notes for Speech in
\nCongress (June 8, 1789), in 12 THE PAPERS OF JAMES MADISON 193-94 (Charles F. Hobson
\net. al. eds., 1979). One can only speculate about why the Heller majority did not mention
\nMadison\u2019s notes. The notes were certainly discussed in one of the most important amicus
\nbriefs. See Brief of Amicus Curiae Academics for the Second Amendment in Support of the
\nRespondent at 34-35, District of Columbia v. Heller 128 S. Ct. 2783 (2008) (No. 07-290),
\navailable at http:\/\/www.gurapossessky.com\/news\/parker\/documents\/07-
\n290bsacAcademicsforSecondAmendment.pdf. Oral argument made it clear that, at least,
\nJustice Kennedy had read that brief. Perhaps Justice Scalia was being absolutely faithful to
\nthe \u201coriginal public meaning\u201d theory of interpretation. That is, consider what the public
\nthought the constitutional language meant; do not try to divine \u201coriginal intent\u201d two
\ncenturies later by looking at diaries of the Founders.
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\n2008] The Right of Self Defense 1009
\nBut even without reference to Madison\u2019s notes, the Stevens theory
\nthat the Second Amendment does not include the right of self-defense
\nsimply collapses when one gets to the word \u201cthe.\u201d
\nThe Second Amendment does not purport to grant a right, but instead
\ndeclares that \u201cthe right . . . shall not be infringed.\u201d39 Thus, the Second
\nAmendment guarantees a pre-existing right. The Heller majority says so,40
\nand Stevens concedes the point.41 What was that pre-existing right? There
\nare only two possibilities. One, as explicated by Scalia (consistent with
\nMadison), is that the right is the English\/Blackstone\/natural right of arms
\nfor self-defense.42 Stevens, however, contends that \u201cthe\u201d right is the right
\nto serve in an armed militia.43 Only if he is correct about this point can his
\ndissent as a whole be correct that the Second Amendment is purely about a
\nright to have arms while in militia service.
\nThere is not a shred of evidence from 1789, or from anytime before
\n1789, that militia service was a \u201cright.\u201d As Justice Scalia pointed out, the
\nStevens claim that \u201cthe\u201d pre-existing right in the Second Amendment was a
\npre-existing right to service in the militia is unsupported by any evidence.44
\nThere is simply no document or other source, from the eighteenth,
\nseventeenth, or sixteenth centuries (or indeed from any century until the
\ntwenty-first, when the claim was invented as part of the Heller litigation)
\nthat the Second Amendment was preceded somewhere in Anglo-American
\nlaw by a right to serve in the militia, or to have arms solely while in the
\nmilitia. Rather, this novel theory appears in the Heller amicus brief filed
\nby the Brady Center.45 The brief, too, is unadorned by any citation for its
\nclaim.
\nB. Natural Right and the Breyer Dissent
\nMost of the Breyer dissent lays out an interest-balancing test, in which
\nJustice Breyer argues that there is some social science evidence in favor of
\n39. U.S. CONST. amend. II.
\n40. Heller, 128 S. Ct. at 2797.
\n41. Id. at 2831 (Stevens, J., dissenting).
\n42. See id. at 2797-99.
\n43. Id. at 2822-25 (Stevens, J., dissenting).
\n44. Id. at 2793.
\n45. Brief for Brady Center to Prevent Gun Violence et al. as Amici Curiae Supporting
\nPetitioner at 17-18 n.6, Dist. of Columbia v. Heller, 128 S. Ct. 2783 (2008) (No. 07-290),
\navailable at http:\/\/www.gurapossessky.com\/news\/parker\/documents\/07-
\n290tsacBradyCenter.pdf (pointing out that the state militia systems pre-dated the
\nConstitution, but providing no evidence that militia service was a right). For history of
\nmilitia litigation in the United States, and the near-total absence of the Second Amendment
\ntherefrom, see generally J. Norman Heath, Exposing the Second Amendment: Federal
\nPreemption of State Militia Legislation, 79 U. DET.MERCY L. REV. 39 (2001).
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\n1010 Syracuse Law Review [Vol. 59:XXX
\nthe D.C. handgun ban, and therefore a judge cannot say as a matter of law
\nthat the ban is unconstitutional.46 A crucial step in that interest-balancing
\ntest is the weight of the interest on each side. Justice Breyer points out that
\npreservation of arms ownership for use in a citizen militia was a major
\nconcern of the Second Amendment.47 Accordingly, he disputes the
\nmajority\u2019s statement that the right of self-defense is \u201ccentral\u201d to the Second
\nAmendment, and that the \u201ccore\u201d of the Second Amendment is armed selfdefense
\nof the home.48
\nJustice Scalia responded by explaining why interest-balancing was
\ninappropriate for a core constitutional right, but he did not directly address
\nBreyer\u2019s question about why self-defense should be considered part of the
\ncore in the first place.49 However, the answer is fairly clear from the
\nnatural law perspective which is incorporated in the majority opinion.
\nBlackstone describes the right to personal defensive arms (protected, but
\nnot created by the 1689 English Declaration of Right) as a \u201cnatural\u201d right.50
\nOther sources in the majority opinion make the same point that the Second
\nAmendment protects a \u201cnatural\u201d right.51
\nEven if balancing were appropriate, Justice Breyer\u2019s scales are
\ninaccurate, because they underweigh the importance of self-defense.
\nSurely nothing could be more fundamental than a natural right. The
\nDeclaration of Independence, after all, did not begin with a statement of the
\n46. See Heller, 128 S. Ct. at 2847-70 (Breyer, J., dissenting). Justice Breyer supported
\nthe argument by pointing to gun restrictions in a few cities in early America. The
\ncenterpiece of the argument was a Massachusetts law which prevented taking loaded guns
\ninto buildings in Boston. Id. at 2849 (Breyer, J., dissenting) (Statute providing a fine for
\n\u201c\u2018any Person\u2019 who \u2018shall take into any Dwelling-House, Stable, Barn, Out-house, Warehouse,
\nStore, Shop, or other Building, within the Town of Boston, any . . . Fire-Arm, loaded
\nwith, or having Gun-Powder.\u2019\u201d). Justice Breyer took the case as standing for the possible
\nconstitutionality of bans on self-defense guns in the home:
\nEven assuming, as the majority does . . . that this law included an implicit selfdefense
\nexception, it would nevertheless have prevented a homeowner from
\nkeeping in his home a gun that he could immediately pick up and use against an
\nintruder. Rather, the homeowner would have had to get the gunpowder and load it
\ninto the gun, an operation that would have taken a fair amount of time to perform.
\nId. (Breyer, J., dissenting). Justice Breyer appears to have misread the statute, which only
\noutlawed the taking of guns into buildings. The statute did not prohibit loading a gun within
\none\u2019s own home or business, and keeping it loaded therein. See id. (Breyer, J., dissenting).
\n47. Id. at 2848 (Breyer, J., dissenting). The balancing test is offered arguendo, since
\nJustice Breyer explains that he is also joining the Stevens dissent, which argues that there is
\nan individual Second Amendment right, but that right has no application outside of militia
\nservice. Id. at 2848, 2870 (Breyer, J., dissenting).
\n48. Id. at 2866 (Breyer, J., dissenting) (\u201cat most a subsidiary interest\u201d).
\n49. See id. at 2821.
\n50. Id. at 2798 (citing WILLIAM BLACKSTONE, 1 COMMENTARIES *139-40, 144).
\n51. SeeHeller, 128 S. Ct. at 2793-2809.
\nKOPEL MACRO DRAFT 12\/7\/2008 12:52AM
\n2008] The Right of Self Defense 1011
\nimportance of rights which were created by government (e.g., the right of a
\ncitizen to be assisted by his nation\u2019s consular offices when he is traveling in
\na foreign country). Rather, the Declaration starts with natural, inherent
\nrights, and states that the very purpose of government is to protect these
\nrights. By the Declaration\u2019s principles, the time that is most appropriate for
\nrigorous judicial review is when a government infringes on one of the
\nnatural rights which the very government was established to protect.
\nFrom Grotius, Pufendorf, and many other sources, the Founders could
\nsee that self-defense had been protected under the laws of Ancient Rome
\nand Ancient Greece, and from the very inception of the Hebrew nation.52
\nThe historical episodes when the right of armed self-defense was
\nendangered\u2014the persecution of the disarmed Huguenots in France, the gun
\nbans of the power-mad Stuarts monarchs in England, the 1775 confiscation
\nof privately-owned firearms from the people of Boston by General Gage\u2019s
\narmy\u2014were precisely the episodes of tyranny which the Founders aimed to
\nensure would never again take place in the United States of America. From
\nthe Founders\u2019 perspective, the right to arms truly was found \u201cwherever
\ncivilization exists.\u201d53
\nIII. THE NATURAL RIGHT\u2019S IMPLICATION FOR FUTURE LEGAL
\nDEVELOPMENTS
\nA. Implications for American Law
\nSelf-defense has generally been highly regarded by the American
\npublic, and Nicholas Johnson has persuasively argued that self-defense is
\nthe epitome of an unenumerated Ninth Amendment right.54 In contrast,
\nsome commentary has denigrated self-defense as a privilege, not a right.55
\nHeller moves self-defense from the shadowy limbo of the Ninth
\n52. See Kopel et al., supra note 17, at 121-22; see also David B. Kopel, The Torah and
\nSelf-Defense, 109 PENN. ST. L. REV. 17, 29-36 (2004); David B. Kopel, The Religious Roots
\nof the American Revolution and the Right to Keep and Bear Arms, 17 J. ON FIREARMS &
\nPUB. POL\u2019Y 167, 173 (2005) (early Americans\u2019 views of ancient Israel as their role model).
\n53. Cruikshank, 92 U.S. at 551.
\n54. See Nicholas J. Johnson, Self-Defense?, 2 J. L. ECON. & POL\u2019Y 187, 193-95 (2006).
\n55. E.g., Vera Bergelson, Rights, Wrongs, and Comparative Justifications, 28
\nCARDOZO L. REV. 2481, 2488 (2007).
\nAll public officials\u2014a policeman performing a valid arrest, a sheriff taking
\npossession of the debtor\u2019s property pursuant to a court judgment, or an
\nexecutioner giving the prisoner a lethal injection in accordance with the execution
\norder\u2014act under the right to act that way. In contrast, people acting in selfdefense,
\nor pursuant to necessity or parental authority act merely under a
\nprivilege.
\nId.
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\n1012 Syracuse Law Review [Vol. 59:XXX
\nAmendment into the bright uplands of the Second Amendment. It is now
\nbeyond dispute in an American court that self-defense is an inherent right,
\nand that it is protected by the United States Constitution.
\nThe constitutional history of the right of self-defense is similar to that
\nof the right of association. The right of association is not formally stated in
\nthe Constitution. But it is easy to see how if the right did not exist, many of
\nthe core purposes of the First Amendment might be defeated. For example,
\nif people could not voluntarily associate in groups such as the NAACP,
\nthen their practical ability to petition the government for redress of
\ngrievances, to assemble, and to speak out effectively on issues of public
\nimportance would be greatly diminished. Thus, starting in 1958, the
\nSupreme Court recognized a constitutional right of association, finding it
\nrooted in the First and Fourteenth Amendments.56 Over the subsequent
\nhalf-century, the Court has fleshed out that right, and applied it in many
\ncontexts far distant from the original cases involving Jim Crow state
\ngovernments attempting to suppress the NAACP.
\nIn a series of cases in the late nineteenth and early twentieth centuries,
\nthe Supreme Court strongly defended the right of self-defense\u2014holding,
\nfor example, that carrying a gun for lawful protection was not evidence of
\nmurderous intent, and that a crime victim was not required to retreat or to
\navoid any place where he had a right to be before he could exercise his
\nright to use deadly force in self-defense.57 Likewise, the defensive actions
\nof crime-victims should not be subjected to judicial second-guessing; as
\nJustice Holmes memorably put it: \u201cDetached reflection cannot be
\ndemanded in the presence of an uplifted knife.\u201d58
\nThese cases were decided as matters of federal common law, most of
\nthem arising out of death sentences improperly imposed on people in the
\nIndian Territory of Oklahoma for use of a gun in self-defense.59 Now that
\nHeller has made it clear that self-defense is part of the Constitution, and not
\njust part of federal common law, there may be plausible arguments that the
\nrules of the Self-Defense Cases are likewise required as a matter of
\nconstitutional law.
\nShould the Second Amendment be incorporated against the states, a
\nfew jurisdictions might have to change hostile procedural rules against self-
\n56. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 466 (1958).
\n57. See David B. Kopel, The Self-Defense Cases: How the United States Supreme
\nCourt Confronted a Hanging Judge in the Nineteenth Century and Taught Some Lessons for
\nJurisprudence in the Twenty-First, 27 AM. J. CRIM. L. 293, 322 (2000).
\n58. Brown v. United States, 256 U.S. 335, 343 (1921) (also declaring there is no duty
\nto retreat).
\n59. See Kopel, supra note 57, at 296.
\nKOPEL MACRO DRAFT 12\/7\/2008 12:52AM
\n2008] The Right of Self Defense 1013
\ndefense. For example, until recently, Arizona required that a defendant
\nasserting self-defense must carry the burden of proof.60 The few states
\nwhich require retreat by a crime victim in her own home might lose
\nconstitutional challenges to those laws. If a judge prohibited a criminal
\ndefense lawyer during voir dire from asking potential jurors about whether
\nthey had moral objections to self-defense, a criminal conviction from such
\na jury might be invalid.61
\nB. Implications for Foreign Law
\nHeller only applies as binding law within the jurisdiction of the
\nUnited States. However, American constitutional law has a long record of
\ninfiltrating into other civilized nations. American protection for freedom of
\nspeech and freedom of the press, as well as American anti-discrimination
\nlaws, have had significant influence in our fellow democracies. Sometimes
\nthat influence is direct, with foreign courts citing American precedents.
\nBut more important, in the long run, is the effect that the American
\nexample has on the rights-consciousness of the public in those nations.
\nThe right to arms has already shown that it travels. In 2006, the
\npeople of Brazil overwhelmingly rejected a referendum to ban gun
\nownership, and proponents of the referendum noted with dismay the
\nsuccess of anti-referendum advertising which urged Brazilians not to
\nsurrender their rights.62
\nFor the last decade, the United Nations has led a concerted global
\ncampaign against citizen gun ownership. The global prohibitionists have,
\nto the extent they have acknowledged any American interest in protecting
\nAmerican laws, claimed that the Second Amendment protects no individual
\n60. E.g., State v. Farley, 19 P.3d 1258, 1260-61 (Ariz. Ct. App. 2001) (upholding
\nstatutory requirement that criminal defendant prove self-defense by preponderance of
\nevidence).
\n61. E.g., Black v. State, 829 N.E.2d 607, 609, 611-12 (Ind. Ct. App. 2005) (based on
\nself-defense right in Indiana Constitution).
\n62. See David Morton, Gunning For the World, FOREIGN POL\u2019Y, Jan\/Feb 2006, at 58:
\nIf you asked people in Bosnia, Botswana, or, for that matter, Brazil, what the
\nSecond Amendment of the U.S. Constitution stands for, most of them would
\nprobably have no idea. But the unexpected defeat of Brazil\u2019s proposed gun
\nprohibition suggests that, when properly packaged, the \u201cright to keep and bear
\narms\u201d message strikes a chord with people of very different backgrounds,
\nexperiences, and cultures, even when that culture has historically been anti-gun.
\nIn fact, the Second Amendment may be a more readily exportable commodity
\nthan gun control advocates are willing to accept, especially in countries with fresh
\nmemories of dictatorship. When it is coupled with a public\u2019s fear of crime\u2014a
\npressing concern in most of the developing world\u2014the message is tailored for
\nmass consumption.
\nKOPEL MACRO DRAFT 12\/7\/2008 12:52AM
\n1014 Syracuse Law Review [Vol. 59:XXX
\nright of gun ownership, but is only a \u201ccollective\u201d right which no individual
\nhas a right to exercise. All nine Justices in Heller rejected that claim, and
\naffirmed that the Second Amendment guarantees an individual right. As a
\nfallback position, some advocates have stated that the American Second
\nAmendment is unique, and that its very absence shows the permissibility of
\ngun prohibition in other nations.63
\nThe latter argument was never really correct as a matter of
\nconstitutional law. Three nations besides the United States have a
\nconstitutional right to arms, and twenty nations have a formal constitutional
\nrecognition of self-defense.64
\nHeller\u2019s natural law explication of the inherent right of armed selfdefense
\nteaches another very relevant lesson. The right of self-defense is
\nnot culturally contingent, and it does not depend on national law. The right
\nof self-defense is a universal, fundamental, natural and inherent human
\nright.
\nOf course there will be many governments which have ignored that
\nright, and will continue to do so. For example, in the United Kingdom and
\nthe Netherlands, the principle that there is a right even of unarmed selfdefense
\nhas been in grave danger\u2014at least among the judiciary and the rest
\nof the governing elites.65
\nYet because Heller was not written solely in terms of positive
\nAmerican law, but rather with explicit recognition of pre-existing natural
\nrights, the case may play a role in reminding the people of the world that
\n63. E.g., Thomas Gabor, Firearms and Self-Defence: A Comparison of Canada and the
\nUnited States 22-23 (Dept. of Just., Canada, Working Document No. WD1997-3e, 1997)
\navailable at http:\/\/www.cfc-cafc.gc.ca\/pol-leg\/reseval\/
\npublications\/reports\/1997\/pdfs\/selfdef_en.pdf.
\n64. Kopel et al., supra note 17, at 141-42. Self-defense is in the constitutions of
\nAntigua & Barbuda, the Bahamas, Barbados, Belize, Cyprus, Grenada, Guyana, Haiti,
\nHonduras, Jamaica, Malta, Mexico, Nigeria, Peru, Samoa, St. Kitts & Nevis, Saint Lucia,
\nSaint Vincent and the Grenadines, Slovakia, and Zimbabwe. Id. at 138-41. The right to
\narms is explicit in the Constitutions of Guatemala, Haiti, Mexico, and the United States. Id.
\nat 141.
\n65. Following years of public pressure, the government of the U.K. in July 2008
\namended the self-defense law to clarify and protect some self-defense rights for the victims
\nof home invasions. C.f. Criminal Justice and Immigration Act, 2008, ch. 4, \u00a7 76(7) (U.K.).
\nReasonable use of the force is to be judged according to the circumstances as the defender
\nperceived them; and must consider:
\n(a) that a person acting for a legitimate purpose may not be able to weigh to a
\nnicety the exact measure of any necessary action; and (b) that evidence of a
\nperson\u2019s having only done what the person honestly and instinctively thought was
\nnecessary for a legitimate purpose constitutes strong evidence that only reasonable
\naction was taken by that person for that purpose.
\nId.; see also Richard Edwards & Chris Hope, You Have the Right to Shoot Dead a Burglar,
\nDAILY TELEGRAPH (London), July 16, 2008 at 1, available at 2008 WLNR 13269970.
\nKOPEL MACRO DRAFT 12\/7\/2008 12:52AM
\n2008] The Right of Self Defense 1015
\nthey, too, have \u201cthe natural right of resistance and self-preservation,\u201d a
\nright which is necessarily effectuated by \u201cthe right of having and using
\narms for self-preservation and defence.\u201d66
\nOn one side of the debate are the Kenyans who say that the central
\ngovernment, which is manifestly unable and unwilling to protect the
\ntribespeople, should rescind its prohibition on their possession of arms.67
\nOn the other side is the United Nations, which claims that self-defense is
\nnot a right, but is a violation of the right of the criminal attacker, which
\nseeks to outlaw all defensive ownership of firearms, and which has
\ndeclared that laws in the United States and other nations which allow use of
\ndeadly force against rapists and other violent predators are a human rights
\nviolation.68
\n66. David B. Kopel, The Right to Bear Arms and \u201cSensible\u201d Gun Laws,
\nhttp:\/\/www.cato-unbound.org\/2008\/07\/18\/david-kopel\/the-right-to-bear-arms-and-sensiblegun-
\nlaws\/ (July 18, 2008, 09:03 EST). A right of self-defense without a right to at least
\nsome defensive arms would be a right of little practical utility. It is arms\u2014especially,
\nfirearms\u2014which allow a weaker person to defend herself against a stronger attacker or
\ngroup of attackers. It is the firearm which best makes a deterrent threat of self-defense,
\nwhile allowing the victim to remain beyond the grasping distance of the stronger
\nassailant(s).
\n67. Paul Letiwa, Why Herders Won\u2019t Surrender Their Firearms Just Yet, THE NATION
\n(Kenya), Apr. 30, 2008, available at http:\/\/allafrica.com\/stories\/200804300138.html.
\n\u201cHow can the Government ask us to surrender our guns when we know very well
\nthat there is no security for us? If we give out our firearms, say today, who will
\nprotect us when the neighbouring tribes strike? How about our stolen livestock?
\nWho is going to return them to us?\u201d Mr Lengilikwai talks with bitterness.
\nId.; see also Ng\u2019ang\u2019a Mbugua, Law Should Be Changed to Free Guns, THE NATION
\n(Kenya), Apr. 25, 2008, available at
\nhttp:\/\/allafrica.com\/stories\/printable\/200804251276.html (noting success of armed defense
\nprogram of the people of the Kerio Valley).
\nIn the past, critics of liberalising access to firearms have argued that they would
\nput ordinary people\u2019s lives in peril because even squabbles in the streets or the
\nbedroom would be resolved by bullets. Incidentally, such incidents are few and
\nfar between in the Kerio Valley despite the easy accessibility of AK- 47s as well
\nas the relatively low levels or education and social sophistication. . . . If Kenya is
\nto achieve long-lasting stability, it ought to borrow a leaf from the US, whose
\nconstitution gives the people the right to bear arms and form militias for their own
\ndefence should the armed forces fail them, as happened in Kenya after the
\nDecember elections.
\nId.; see David B. Kopel, Paul Gallant, & Joanne D. Eisen, Human Rights and Gun
\nConfiscation, 26 QUINNIPIAC L. REV. 385, 388-419 (2008) (describing gun policies in
\nKenya, Uganda, and South Africa).
\n68. See generally U.N. Human Rights Council, Sub-Comm\u2019n on the Promotion and
\nProt. of Human Rights, Adoption of the Report on the Fifty-Eighth Session to the Human
\nRights Council: Draft Report of the Sub-Commission on the Promotion and Protection of
\nHuman Rights, U.N. Doc. A\/HRC\/Sub.1\/58\/L.11\/Add.1 (Aug. 24, 2006) (prepared by
\nMohammed Habib Cherif), available at
\nhttp:\/\/www2.ohchr.org\/english\/bodies\/subcom\/docs\/58\/A.HRC.Sub.1.58.L.11.Add.1.pdf.
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\n1016 Syracuse Law Review [Vol. 59:XXX
\nHeller points to a resolution of the conflict. Long before there was a
\nUnited Nations, or a United States of America, there were inherent natural
\nrights. The recognition of those rights is as old as civilization itself.
\nPerhaps one of the greatest influences of Heller (and, I hope, its progeny)
\nwill be in other nations, where the explicit affirmation of the natural right
\nof self-defense by the most influential court in the world will bolster our
\nglobal brothers and sisters in their efforts to preserve and strengthen their
\nown natural right of resistance and self-preservation.
\nThe United Nations report on self-defense is analyzed in detail in Kopel et al., supra note
\n17, at 129-39, 148-55 (discussing U.N. Human Rights Council, Sub-Comm\u2019n on the
\nPromotion and Prot. of Human Rights, Prevention of Human Rights Violations Committed
\nwith Small Arms and Light Weapons, U.N. Doc. A\/HRC\/Sub.1\/58\/27 (July 27, 2006)
\n(prepared by Barbara Frey), available at
\nhttp:\/\/www.geneva-forum.org\/Reports\/20060823.pdf).<\/p>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"