A Constitutional Right to Self Defense?

Abstract

Is there a constitutional right to self-defense? The skeptic who insists on a citation to the seminal case unequivocally establishing the right may claim that the Supreme Court has not elaborated the right of self-defense the way it has developed the highly litigated provisions of the bill of rights. But as a practical matter, we find the right of self-defense an essentially universal value that the Court and commentators have used as a foundational principle to ground and illuminate other constitutional rights.

This article will show that self-defense is a basic raw material of our social and political structure, a right from which other constitutional guarantees have been derived and therefore (even if unenumerated) n5 in the first echelon of fundamental constitutional rights. Section I will summarize the case that self-defense is protected by the Second Amendment. Section II will explain why a basic right to self-defense might be imperfectly enumerated and suggest how the Ninth Amendment [*188] might support it. Section III shows how self-defense has been used as a building block of the constitutional right to abortion. Section IV shows how elaborations of the Fourth and Eighth Amendment are derived from self defense. Section V presents a series of nineteenth century Supreme Court cases that treat self-defense like the sun rising in the east. Section VI shifts the burden of proof, and shows that the independent case against the right of self-defense depends on ideas rooted in the most vile social institution ever to afflict our society.

I conclude from all of this that while the stickler might quibble about the fashion in which it has been recognized, the ancient right of self-defense is in the first echelon of fundamental constitutional rights essential to "liberty," first among the rights protected by the Ninth Amendment and at the core of a proper understanding of the Second Amend-ment.

Keywords: self defense, second amendment, federal common law, abortion, slavery