A Constitutional Right to Self Defense?
Nicholas James Johnson
Fordham University School of Law
November 4, 2006
George Mason Journal of Law Economics and Policy, Vol. 2, p. 187, 2006
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.
Number of Pages in PDF File: 22
Keywords: self defense, second amendment, federal common law, abortion, slavery
Date posted: November 4, 2009