Conspirator David Kopel argues that there is a “human right” of self-defense.  His point was to distinguish it from a legal excuse, such as duress or insanity, and to argue that the right to self-defense should be recognized as a human right and forms the basis of international law. 

This is one of those issues that is best decided in the school yard than the courtroom.  If a kid punches you in the nose, you have the right to punch back.  But schools have new rules these days, where they have “zero” tolerance for violence.  So a basic school yard fight breaks out, both the initial aggressor and the defender are punished.  Besides fighting human nature (the “fight or flight” response), this sends a conflicted message:  The victim must make a choice between survival and compliance with the rules. 

Granted, the school yard punch isn’t generally a death blow, but it often becomes one as school children grow up and the weapon isn’t a 12-year-old fist but a tire iron swung at one’s cranium.  Sometimes, the simple answer is the only viable one:  If you do not defend yourself, your dead.  They can speak of what a law-abiding fellow you are, but it will be in your eulogy. 

There must be a definitive right to self-defense.  The option cannot be comply and die.  Neither the law nor reason can require that a person be forced to choose between survival and suffering a criminal sentence.  When we (or are children) are threatened with harm, we must do whatever is necessary to defend/protect ourselves.  I reject the notion that anything else is right.

The problem is that the law still doesn’t see it this way.  As with all things legal, we have created a construct of nuanced rules that compel the victim of potential harm to take certain actions, to certain degrees, under certain circumstances.  We require retreat where, in the eyes of those who were not functioning with the proverbial gun to their head, think it feasible.  We allow “reasonable” force to defend, but no more.  Deadly force may be acceptable, but only when threatened by deadly force viewed through the prism of calm deliberation.

The problem is that choices are not made in a calm, thoughtful environment.  No matter how smart the actor, how knowledgeable, humans react to threats instinctively.  The adrenalin pumps and we do what we have to do, or what we perceive we have to do, to survive.  If you’re punched once, are you allowed only one punch in return?  After that, do you become the criminal, subject to punishment for the second or third punches?

This dilemma went through my mind yesterday as my wife and I drove our son to a fencing tournament in New Jersey.  It had snowed fairly heavily (for Long Island) and the roads were still in rough shape.  But the tournament was on, and it was our duty as parents to get him there. 

Due to lack of practice, neither the plows nor the drivers around here do a very good job in the snow.  As trucks drove through large piles of slush on the road, it kicked up on the sides and splatters onto vehicles in the next lane with shocking force.  At best, it blinded the drivers.  At worst, it seemed as if it would break the windshield.  There was no way to stop it.  But there was an alternative.

To the far left was a High Occupancy Vehicle (HOV) Lane.  Between the regular travel lanes and the HOV lane was an area of dead space, marked off with lines, which no one is ever allowed to cross.  This is an ironclad rule.  As my wife was driving, I told her to cross the lines and go into the HOV lane, where we would have much greater distance from the trucks and potentially avoid being blinded if not worse from the icy slush.  She refused, at first,  She found it impossible to break the rule.

“Would you rather die?” I asked.  It was that dangerous.  She did it.  As this happened, I pondered my right to survive.  Any port in a storm.  When my life, or the life of my family, is at risk, I will do whatever I have to do to defend it.  There is no rule, no law, that trumps my right to survive or protect my family.

As my wife crossed through no-man’s-land, I thought to myself that if some cop stops us for breaking the law, I am fully ready to defend.  There was absolutely no doubt in my mind that I have a basic human right to take whatever actions are necessary, under the circumstances, to defend.  And that no cop, prosecutor, judge or jury has the authority to tell me that my choice was wrong and that if I was a “good” person, I should have opted to comply with the law.  And died.