Does Supreme Court Justice Antonin Scalia secretly read Justice William O. Douglas for inspiration late at night in the privacy of his bedroom?  It just may be, if David Kopel at VC is correct when he writes:

District of Columbia v. Heller clearly establishes self-defense (not just gun ownership for self-defense) as a constitutional right.

“Clearly establishes” is some strong language, and if true, opens some huge doors to criminal defense lawyers.  The more rights, the merrier as I always say.

Now I’ve read the Constitution, as well as the Bill of Rights, and I can’t remember anything mentioned about a right of self-defense.  But then, David’s not crazy.  There are no less than 86 references in the entire Heller opinion (including syllabus) to the “right to self-defense.”  Those words seem fairly clear, no?

Orin Kerr picked up immediately on David’s “clearly establishes” claim, and disagreed.  But after commenters referenced the pervasive use of the “right to self-defense” throughout the opinion, Orin found himself in a dilemma.   In a comment, he wrote:

I suppose that’s a possible reading, but doesn’t it seem unlikely that Justice Scalia would believe in a general constitutional right to self-defense founded in the emanations and penumbras of various textual constitutional provisions?  It seems like a rather un-Scalia-like reading of the opinion.

Note this comment, for it’s the first use of a significant rule of interpretation, the “un-Scalia-like reading” rule.  This will no doubt find its way into a footnote next term.

Eugene Volokh, ever the peacemaker, then jumped into the fray.  With a lengthy explanation, Eugene found himself on David Kopel’s side, constrained to accept the position that a right to self-defense has reared its ugly head historically and, given its flaunting by Scalia throughout Heller, seems destined to make its way into a full-fledged constitutional right.

So is there an unenumerated constitutional right to self-defense hiding beneath the Heller bedsheets?  And has Scalia secretly adopted the “emanations and penumbras” approach to constitutional interpretation when it serves some evil purpose?  Not likely.

Missing from the debate is any reference to natural law, which I find surprising for such an erudite group.  While I’m not a proponent of natural law in most instances, largely because it’s been stolen by people who want to replace it with their personal morality, there are some cases in which it holds great merit.  This is one of them.

There is no “law” more basic to the existence of humanity than survival.  It is a reflex, fight or flight.  We each do what we must to survive, and the notion that any human being would stand there and allow himself to be killed rather than do what is necessary to protect himself is so fundamental to our nature that any law or rule that would require otherwise violates our humanity. 

Sure, we have laws that suggest the contrary, like efforts to protect oneself from a good beating by the cops when lying on the ground cuffed and trying to get away from the flailing batons, the stomping boots, the clenched fists that follow “department policy” to subdue perps.  That’s called “aggressive behavior” by the perps, who are supposed to lay there and enjoy a good “tuning up” without attempting to block the crashing flashlight to the head lest the post hoc rationale for the beating enjoy some validity.  But I digress.

The Heller decision clearly invokes the right of self-defense, but it’s a right that all people inherently believe and accept to be their birthright, not something that any government can give or take away.  What is significant about its elusive head popping up in Heller is that it becomes available for use in court, rather than merely some unacknowledged though universally accepted, right in reality. 

Eugene properly notes that this right, when put to the test, has rational parameters.

Thus, a rule that one can only use deadly force to defend oneself against threats of death, serious bodily injury, rape, kidnapping, and a few other very serious threats would likely be constitutional (even though many states also allow use of deadly force to defend against robbery and in some situations burglary). Likewise, the “duty to retreat,” which is to say the principle that deadly force can only be used in self-defense if it’s genuinely necessary, in that no safe avenue of retreat is available, is likely to be constitutional, too, because it has long been recognized in at least a substantial minority of states. There may be other examples as well. My point is that a federal constitutional right to self-defense likely exists, especially in the wake of Heller; but it is not unlimited, and is likely to be strongest precisely where there’s a broad and deep common-law and statutory tradition of recognizing such a right.

While the edges of the right remain somewhat fuzzy, and people will argue about whether there is a duty to retreat, or how in the midst of a threat they are to have the ability to sit back, reflect and limit their natural self-defensive reaction so that it meets the expectation of some judge making sanitary decisions in the safety of a courtroom, the fact that it exists, it must exist and should be available as an assertion of right should a person’s self-defensive actions result in his ending up court some day adds an important enunciation of rights to our arsenal.

Justice Scalia’s opinion doesn’t make it new.  But it does make it real.  And it reminds us that there are some rights that exist even beyond the four corners of the Constitution.