What Right Does Heller Recognize?

In District of Columbia v. Heller, the Supreme Court held "that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense."  Slip op. at 64.

David Kopel, writing at the Volokh Conpsiracy, concluded that "District of Columbia v. Heller clearly establishes self-defense (not just gun ownership for self-defense) as a constitutional right."  Orin Kerr disagreed: 

Off the top of my head, I tend to disagree with this claim about the scope of Heller. The fact that the Constitution protects a constitutional right to do X when it serves interest Y does not mean that there is a constitutional right to serve interest Y unrelated to X.

I think Kopel is right, based on the text of the opinion and based on Justice Antonin Scalia's jurisprudence.

First, the text.  The Heller opinion itself suggests that one has a right to self-defense.  On page 26 of the slip opinion, Justice Scalia notes: "JUSTICE BREYER's assertion that individual self-defense is merely a 'subsidiary interest' of the right to keep and bear arms, see post, at 36, is profoundly mistaken. He bases that assertion solely upon the prologue-- but that can only show that self defense had little to do with the right's codification; it was the central component of the right itself."

Page 56 (emphasis added) of the slip opinion reads: "As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right." 

Further, writing about an earlier law, the Court noted: "It is inconceivable that this law would have been enforced against a person exercising his right to self-defense on New Year's Day against such drunken hooligans."  Id. at 60-61 (emphasis added). 

Don't those passages seem to suggest that there are two rights?  Namely, "the inherent right to self-defense," and the "Second Amendment right"?

Second, I don't think Scalia's jurisprudence requires us to read away Heller's text. Confronted with Heller's language, Kerr noted:

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? A It seems like a rather un-Scalia-like reading of the opinion.

As a general rule, I think Kerr is correct.  But Kerr's reading of Scalia's jurisprudence omits this important exception: Justice Scalia supports "old rights," even if those rights are not listed in the Constitution. 

Scalia is willing to recognize unstated rights if those rights are "deeply rooted in this Nation's history and tradition." Lawrence v. Texas, 539 U.S. 558, ___ (2003) (Scalia, J., dissenting), citing Washington v. Glucksberg, 521 U.S. 702 (1997).

In Glucksberg, the Court held that substantive due process (where  unenumerated rights like abortion originates from) only protected those rights which were "deeply rooted." Scalia joined the opinion of the Court, and he did not write a separate concurrence. 

So I think it's overstating things to suggest that Scalia opposes all unenumerated rights.  Rather, he is willin to recognize that some rights, namely those "deeply rooted" rights exist, even if not explicitly mentioned.

It would be hard to that the right to self-defense is not "deeply rooted," given the exceptions that have been carved out of homicide statutes for centuries.  Some would say that, to the extent our Constitution is based on Thomas Hobbes' ideas, that no right is more deeply rooted than the right to self-defense:

To resist the sword of the Commonwealth in defence of another man, guilty or innocent, no man hath liberty; because such liberty takes away from the sovereign the means of protecting us, and is therefore destructive of the very essence of government. But in case a great many men together have already resisted the sovereign power unjustly, or committed some capital crime for which every one of them expecteth death, whether have they not the liberty then to join together, and assist, and defend one another? Certainly they have: for they but defend their lives, which the guilty man may as well do as the innocent. There was indeed injustice in the first breach of their duty: their bearing of arms subsequent to it, though it be to maintain what they have done, is no new unjust act. And if it be only to defend their persons, it is not unjust at all. But the offer of pardon taketh from them to whom it is offered the plea of self-defence, and maketh their perseverance in assisting or defending the rest unlawful.

Thomas Hobbes, The Leviathan, Ch. 21.  [In that passage, Hobbes was noting that a man may even take up arms against the State in self-defense.]

So I think Kopel is correct: Heller does indeed recognize a general right to self-defense.  At the very least, one has the right to defend one's home.

Comments

[Dave Hardy]

Also worth noting that Hobbes considered self-defense as the one right which a subject could not give up to the sovereign, since the purpose of giving up rights (understanding that he posited that in the state of nature one had a legal "right" to do anything, including murder ... no laws equals legal right to any action) was to obtain security from attack (i.e., others doing the same).

So this was at the very core of the idea of "inalienable rights."

[Mike]

Good point, Dave.

[JT]

More and more, it seems this decision doesn't clarify much at all, which may or may not have been the goal of the Supreme Court. Truth be told, a city like Washington D.C. shouldn't have to abide by the same gun laws as a rural town in Nebraska, but NRA advocates fear too much government intrusion and fight any and all gun control laws. Mayors and city counsels should have the right to protect their citizens from violence.