At the Volokh Conspiracy, Eugene Volokh and Orin Kerr are discussing whether DC v. Heller establishes a “Constitutional Right to Self-Defense.” I’m with Professor Kerr on this one: it doesn’t. My opinion is of course completely uninformed, but when the experts disagree, why shouldn’t the rest of us chime in?
In the Court’s opinion Justice Scalia certainly does talk at length about self-defense. But I don’t think he quite gets to the point of saying there is a Constitutional right to self-defense. I see it coming up in two different contexts, in two different sets of arguments.
The first is in Scalia’s discussion of the phrase “keep and bear arms,” and whether it had an exclusively military meaning, “to serve in an army or militia” or whatnot. Here Scalia seems to be arguing along these lines:
- There are instances of the phrase “bear arms” explicitly meaning “have weapons for self-defense.”
- “Self-defense” is not “serving in the military.”
- Hence “bear arms” does not necessarily mean “to serve in the military.”
Now I disagree with this on a couple of counts, but that’s not important now; my point is that it has nothing to do with any Constitutional right to self-defense. The rest of Scalia’s self-defense references are more relevant. He cites a number of mostly 19th-century sources interpreting the second amendment as “protect[ing] an individuals right to use arms for self-defense.” And his opinion’s first holding is,
The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
I can certainly see how someone might find a “Constitutional right to self-defense” there. But I don’t think that’s right. Scalia isn’t justifying a right to self-defense, he’s assuming one. Applying something like his own logic re the Prefatory Clause, I interpret the holding as meaning, “The 2A protects a right to use firearms for traditionally lawful purposes,” with the note that one of those traditionally lawful purposes is self-defense.
That may seem silly, but consider another “traditionally lawful purpose,” hunting. Much of the older precedent Scalia cites re self-defense applies equally well to hunting, but I don’t see anyone attempting to find a Constitutional right to hunt in his opinion. There are all sorts of laws restricting hunting, which doubtless annoy hunters, but which as far as I know are Constitutionally uncontroversial. One could argue that DC could put more restrictions on the storage of .30-06s than on handguns, elk-hunting not being a lawful purpose in the city itself.
And I don’t see much in Scalia’s opinion about what exactly a right to self-defense might entail. Presumably it would include shooting someone breaking into your home. But what else? Will someone interpret Heller as guaranteeing a right to concealed carry, so you can shoot muggers on the street? (I’m sure someone will, actually.) Can you shoot an attacker if running away is an option? How much discretion do states an municipalities have to regulate the right? In Texas it’s apparently acceptable to shoot suspicious-looking people in your neighbor’s yard; I doubt that would fly in Massachusetts. If there is a Constitutional right, it’s not very well-codified. (See also Jack Balkin for much better-informed commentary on the subject.)
Now if a self-defense case actually reached the Supreme Court I’m fairly sure Scalia would find a right to it, based on tradition and common law and precedent and other extra-Constitutional sources—not every right is a Constitutional right! He might even find one in the penumbras he generally so despises (it wouldn’t be the first time…). But he hasn’t quite done that yet.