Article
Uncoupling the Constitutional Right to Self-Defense from the Second Amendment: Insights from the Law of War
Connecticut Law Review
(2013)
Abstract
This Article contextualizes Professor Nicholas Johnson’s argument that a
robust right to arms is essential to the security of Black communities in the United
States. While accepting Johnson’s premise that private self-defense is necessary
where government is hostile towards or unable to defend a community against
violence, this Article maintains that the Second Amendment as understood at the
time of its ratification did not extend to private self-defense. Rather than forcefitting a private right to self-defense into the syntactically and contextually
unrelated Second Amendment as one-Justice majorities have done in District of
Columbia v. Heller and McDonald v. City of Chicago, the Author suggests that
honest intellectual engagement with moral and philosophical claims in favor of a
private right to self-defense could profit enormously from careful consideration of
the jus ad bellum, the branch of public international law concerning the right of
states to defend themselves against armed attack. The lack of an absolute textual
command in the Constitution, federalism, and deference to democratically
legitimate legislative policy making favor judicial accommodation of public safety
and arms control concerns alongside private claims of self-defense. Comparing
the right to self-defense in domestic law (as illustrated by the Trayvon Martin
case) to the right to self-defense in public international law (as illustrated by the
arguments advanced by the Bush and Obama Administrations to justify the use of
unmanned drones to target Al Qaeda operatives) suggests that claims to use force
in self-defense must be limited to situations in which an actual attack is underway
or imminent. The Author concludes by suggesting that these limits are inherent in
general principles of law basic to the very nature of self-defense, and that
constitutional jurisprudence in the United States would benefit greatly from
attending to these general principles of law and abandoning historically
implausible and disingenuous originalism when assessing claims premised on the
right to self-defense.
Disciplines
Publication Date
July, 2013
DOI
10.2139/ssrn.2217017
Citation Information
William G. Merkel. "Uncoupling the Constitutional Right to Self-Defense from the Second Amendment: Insights from the Law of War" Connecticut Law Review Vol. 45 Iss. 5 (2013) p. 1809 - 1840 Available at: http://works.bepress.com/william_merkel/8/