July-September 2008 Archive

The Natural Right of Self-Defense: Heller's Lesson to the World

The Syracuse Law Review is putting together a symposium issue on the Heller decision. My article for the symposium examines the implications of Heller's constitutionalization of the natural law right of self-defense.

The article has benefitted from the VC discussion of self-defense in Heller by Orin Kerr, Eugene Volokh, and Jim Lindgren. Due to the symposium's desire for short articles, I was not able to explore all the interesting issues raised by the discussion.

Jim had suggested that the topic would make a good subject for student Notes, and I certainly agree. My Article doesn't come close to exhausting the topic. For example, in the course of research, I found the 1874 treatise "Select American Cases on the Law of Self-Defence." (Available on Google Books.) There is a vast amount of material therein that is worth exploring. Moreover, my string cite (note 15) on American cases describing self-defense as a "natural right" does not even include cases using the term "inherent right" instead.

BTW, I did not steal the title from Jim's suggestion. I already had it in my draft, as a sequel to my BYU J. Pub. L. article "The Human Right of Self-Defense."

In footnote 15, you will find a 1832 Kentucky case which I did find thanks to Jim. As you'll see, I still haven't solved the mystery of how the Kentucky court attributed to Matthew Hale a quote which actually appears to come from Michael Foster. I'll send a free copy of the forthcoming book Supreme Court Gun Cases, vol. 2, to the first person who can provide a definitive solution.

D.C. City Council's False "Findings" of Facts on Firearms:

D.C. City Councilman Harry Thomas has introduced a resolution titled "Sense of the Council of Future Handgun Resolution of 2008." The resolution makes the following findings:

(1) Accidental deaths by firearms rank in the top 10 of accidental deaths in our country.

(2) Approximately 1,500 deaths per year result from the accidental use of a fire-arm. Of the 1500, 75% are young males between the age of 14 and 25, who unintentionally shoot themselves or someone else.

These finding are clearly false. According to the 2005 data (National Vital Statistics Reports, Volume 56, Number 10, April 24, 2008, Table 18), the total number of accidental firearms deaths, for all ages combined, was 789--about half the figure that Thomas claims. Firearms are not in the top 10 causes of accidental death, but are outranked by the following specified categories: Drowning, Fall, Fire/flame, Motor vehicle traffic, Pedestrian (not including from motor vehicles), Other land transport, Other transport, Natural/environmental, Poisoning, Struck by or against, Suffocation.

According to the "findings," there are about 1,125 accidental firearms deaths annually, involving males aged 14 to 25. Using the excellent on-line query tool from the National Center for Injury Prevention and Control, you can find the 2005 total number of fatal gun accidents for males aged 14-25 was 219.

The Thomas "finding" claimed that males aged 14-25 were the victims OR the perpetrators of 3/4 of total fatal gun accidents. I have no idea where Thomas gets this figure from. For the figure to be correct, that males 14-25, who are the victims of about one-quarter of all fatal gun accidents, would also have to be the non-victim perpetrators of about nearly 2/3 of accidents involving all other groups. (2/3 x 3/4 [fraction of accident victims who are not males 14-25] = 1/2. We add the 1/2 to the 1/4 of accidents in which males 14-25 are the victim, to get males aged 14-25 as perpetrators or victims in 3/4 of total accidents.) This seems implausible, although not formally impossible.

The incorrect "findings" about accidents are then followed by two more findings, which are really policy statements apparently based on the findings:

(3)There must be strict standards to regulate the sale of handguns in the District of Columbia, including stringent waiting periods for the purchase of hand guns, as well as the implementation of comprehensive training and education programs on the dangers of handguns through the DC Department of Parks and Recreation partnering with other agencies.

(4) There must be rigorous restrictions where gun stores can be located, a possible ban on private sales of handguns, and require gun shop operators to enter into voluntary agreements with community residents through their Advisory Neighborhood Commissions before such establishments can be issued a Certificate of Occupancy.

The finds are then followed the statement:

Sec. 3. It is the sense of the Council that strict and rigorous handgun regulations must be in place to ensure the health, safety, and welfare of District of Columbia residents.

Back in 1976, when the District's City Council enacted the handgun ban, it made the finding that "Most murders are committed by previously law-abiding citizens." This too is indisputably false, as detailed in the Heller amicus brief I wrote with Chuck Michel. (Pages 24-29.) The current City Council would have a better chance of passing gun laws which do not violate the Constitution if the Council were rigorous in its own factual investigations of the purported needs for extremely restrictive laws.

Post-Heller blog debate over at Cato Unbound:

Bob Levy (mastermind of Heller), Dennis Henigan (Brady Campaign), and I are blog-debating Heller and its ramifications over at Cato Unbound. Erwin Chemerinsky should join us later in the week.

The United Nations vs. the Second Amendment:

Over at Opinio Juris, Kenneth Anderson has an interesting post about last week's gun control conference at the United Nations, and a New York Times puff piece thereon, written by C.J. Chivers.

After noting U.S. concerns about the U.N. becoming a venue attacks on American gun ownership, the Times explains:

The United Nations and advocates of gun control have said that such fears are unfounded, and that there is no effort to impose standards on nations with traditions of civilian ownership, or to restrict hunting. The programs, they said, apply largely to areas suffering from insurgencies or war.

“States remain free to have their own national legislation,” said Daniel Prins, chief of the Conventional Arms Branch of the United Nations Office for Disarmament Affairs. “This document does not try to regulate gun ownership in the whole world. This is an instrument that allows states to focus on regions in conflict and the weapons that illicitly get there.”

But Anderson was present at the beginning of the U.N.'s campaign against gun ownership:

I recall sitting in meetings of landmines advocates talking about where things should go next; I was director of the Human Rights Watch Arms Division, with a mandate to address the transfer of weapons into conflicts where they would be used in the violation of the laws of war, and small arms were the main concern. I was astonished at how quickly the entire question morphed from concern about the flood of weapons into African civil wars into how to use international law to do an end run around supposedly permissive gun ownership regimes in the US.

I dropped any personal support for the movement when it became clear, a long time ago, that it is about controlling domestic weapons equally in the US (or, today, even more so) as in Somalia or Congo.

Despite protestations to the contrary, the U.N. remains quite interested in constricting lawful gun ownership. Consider, for example, the United Nations Disarmament Programme's publication, How to Guide: Small Arms and Light Weapons Legislation. The publication touts the importance of international "harmonisation" of gun laws. According to the United Nations:
 

Citizens should only be allowed to own guns if they are given a government permit, and the permit should only be issued if there is a "good reason" for possession or or "genuine need." In particular, permits to own guns for self defense should not be issued unless the applicant proves that he is in immediate danger.

The law require "safe storage", which means that firearms should be disassembled and the ammunition ammo stored separately.

There should be frequent renewal procedures to assure the owner's continued eligibility. A good example is provided by Australia, which for most gun owners (except farmers) requires membership in a sports club, and participation in a minimum number of shooting events annually.

A firearms license should be contingent on the consent of the person's spouse or former partner.

All firearms should be registered on a centralized computer system.

The home and vehicles of a gun owner should be subject to official inspection "at will."

In The Human Right of Self-Defense, 22 BYU Journal of Public Law 43 (2008), Paul Gallant, Joanne Eisen and I detail some of the U.N.'s activities against domestic gun ownership. These include:

Providing financial and planning support to the proponents of a gun confiscation referendum in Brazil.

Adopting a Special Rapporteur's report declaring that self-defense is not a right, but is a limited excuse for violating the rights of the criminal.

Declaring that insufficient domestic gun control is a violation of current human rights treaties. Under the U.N.'s standards, even the pre-Heller laws of the District of Columbia were so lax as to be international human rights violations, for allowed the possession and use of defensive rifles or shotguns, in business premises, against non-lethal felony attacks such as rape, mayhem, arson, and armed robbery.

Rebecca Peters' organization IANSA (International Action Network Against Small Arms) is the "the organization officially designated by the UN Department of Disarmament Affairs (DDA) to coordinate civil society involvement to the UN small arms process." The official UN Report against self-defense was written by an IANSA member, University of Minnesota Law Professor Barbara Frey.

According to Peters--the head of the organization which the U.N. says represents "civil society" on gun issues, all handguns should be banned, as should all rifles capable of firing 100 meters, as should the defensive ownership of any gun.

It was certainly a relief to find out that the U.N. has no interest in restricting the gun rights of Americans.

Debate on Heller and its Implications:

Over at Cato Unbound, Bob Levy (Cato), Dennis Henigan (Brady Center), and I are debating the Heller case. All three of us have new essays on the subject. My essay published today looks at the fatal flaw in the Stevens dissent: its treatment of "the" in "the right to keep and bear arms." The essay also examines which types of gun bans and gun storage laws may now be unconstitutional. Erwin Chemerinsky will weigh in next week. Thereafter, we will engage in a four-way blog discussion.

Precedential-deference bleg:

A higher court writes a decision which says X. Misreading the case, many lower courts claim that the decision means Y. Years later, the higher court faces the same issue. To what extent, if any, should the higher court's new decision take into account the reliance interests of the lower courts who said Y?

Is the obvious answer "none"? Justice Stevens and the other three dissenters in Heller did not think so. All nine Justices agreed that the Second Amendment secures an individual right, not a collective right. (The Justices disagreed about the scope of the individual right--in effect, a disagreement between X1 and X2.) Yet Justice Stevens in dissent complained at length that the Heller majority was harming the reliance interests of lower courts, and his litany of complaint about lower court decisions that were being disregarded included many "collective right" decisions from the lower courts.

I am working on a law review article on the subject. I would be grateful for any leads for law review articles which discuss what deference higher courts should give to a large body of lower court decisions on an issue of law, particularly when that body of decisions is based on the lower courts' controversial application of a precedent from the higher court.

Post-Heller Self-Defense bleg:

District of Columbia v. Heller clearly establishes self-defense (not just gun ownership for self-defense) as a constitutional right. In light of Heller, what are some cases from state courts or lower federal courts which might have to be reversed or modified? I am thinking particularly of cases which describe self-defense as a government-granted privilege, for which fewer due process and other protections are available than for a "right." I am not looking for gun regulation cases, but rather for cases about self-defense in general.

McCain and Obama vs. Peaceful Protesters:

That's the topic of my column in today's Rocky Mountain News, starting with an incident Monday in Denver. As the article makes clear, both campaigns appear to be clearly within their legal rights, because they had protesters expelled from places which are not, under current First Amendment doctrine, traditional public fora. But that doesn't mean that either campaign made the right decision.

Collective Rights bleg:

Thanks to District of Columbia v. Heller, we now have unanimous agreement that the "collective rights" theory of the Second Amendment is incorrect. All nine Justices agreed that the Second Amendment guarantees an individual right; the Justices simply disagreed about the scope of the individual right. Nothing in the dissent claims that there is now, or even has been, a scintilla of evidence from the Founding Era, or from Supreme Court precedent, in support of the "collective right."

Justice Stevens' dissent complained that the majority in Heller was upsetting the reliance interest of hundreds of judges, as well as legislators and members of the public regarding what Stevens claimed to be the settled interpretation of the Second Amendment. However, many of the lower court judges and other persons who rejected the Standard Model of the Second Amendment did so by adopting the "collective right" theory. Because the Heller majority and dissent agreed that there was no reasonable basis for the "collective right" theory, I suggest that the reliance interests of "collective rights" believers deserved no consideration by the Supreme Court. In contrast, if one believes Justice Stevens' claim that the Supreme Court had always (until Heller) used the "narrow" individual right theory (the right is only individuals in state militias), then Justice Stevens would have at least raised a plausible issue regarding the reliance interests of "narrow" individual rights believers.

I would like to create a consolidated list of all judicial decisions which adopted the "collective rights" theory. It would be nice to supplement the list with statements from legislators, journalists, academics, etc., claiming that "collective rights" is the only valid meaning of the Second Amendment. So I encourage commenters to supply as many citations as they would like. It would be ideal if the citations followed conventional Bluebook format, and included a brief parenthetical quote from the source.

Bleg on WWII English pacifism:

I believe I have read--but I can't recall where-- that during the Second World War, some English pacifists proposed that when the Nazi troops arrived in England, unopposed by military resistance (thanks to pacifist policy), they should be greeted with Christian love. Such a greeting would be disarming, and the Nazis, seeing that the invaded population were Christian friends rather than belligerents, would realize the error of the war-like Nazi ways.

Does anyone have a citation or other information about this proposal?

MORE BLEG: How a good article or book chapter on Frantz Fanon's influence in promoting racist violence and other terrorism? There's mention of this scattered in many sources, but how about a consolidated, extended treatment?

The VC's First Emmy Nomination:

Colorado Inside Out is weekly public affairs roundtable program, on KBDI channel 12, one of the two PBS stations in Denver. Twice a year, the program tapes a Time Machine episode; our 1927 episode, which was broadcast last December, is one of the three finalists for the "Interview/Discussion Program" category for the National Television Academy's Heartland Chapter (which covers Colorado, Oklahoma, Nebraska, Kansas, and Wyoming).

The half-hour episode is available for Internet viewing here. I play Chumley Drizelwhit, Professor of Ancient Studies at Colorado Women's College, an Al Smith Democrat who celebrates the execution of Sacco and Vanzetti, and bemoans the influence of the KKK. But the Professor does make an error once in a while, as when he describes the film Birth of a Nation as a talking picture.