What Sotomayor’s dancing missed—The Supreme Court on the right to self-defense

[TPaine7]

In her obligatory dancing, the probable next Justice of the United States seemed at a loss when asked if there was an individual right to self-defense. An individual right to self-defense was an “abstract” concept—“meaningless” out of a trial context, apparently.

Watch for yourself. http://www.youtube.com/watch?v=LlFPQeCVgrk

Besides allegedly not having a cogent personal opinion on the question, she couldn’t remember a case where the Supreme Court had addressed it.

Now I know she was under a lot of pressure just from being in that position, as well as the practical requirement to perjure herself to have a shot at the job—like every other Justice since Bork. But if she could dust off her law books and go all the way back to 2008, the Heller decision would reveal the truth. Of course the Supreme Court has spoken on this issue. Many times.

That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen’s RIGHT TO SELF-DEFENSE is strong evidence that that is how the founding generation conceived of the right. And with one possible exception that we discuss in Part II–D–2, 19th-century courts and commentators interpreted these state constitutional provisions to protect AN INDIVIDUAL RIGHT TO USE ARMS FOR SELF-DEFENSE.

Heller, p 30. (http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf)

St. George Tucker’s version of Blackstone’s Commentaries, as we explained above, conceived of the Blackstonian arms right as necessary for self-defense. He equated that right, absent the religious and class-based restrictions, with the Second Amendment. See 2 Tucker’s Blackstone

143. In Note D, entitled, “View of the Constitution of the United States,” Tucker elaborated on the Second Amendment: “THIS MAY BE CONSIDERED AS THE TRUE PALLADIUM OF LIBERTY . . . . THE RIGHT TO SELF-DEFENCE IS THE FIRST LAW OF NATURE: in most governments it has been the study of rulers to confine the right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.”

Heller, p 33

ANTISLAVERY ADVOCATES ROUTINELY INVOKED THE RIGHT TO BEAR ARMS FOR SELF-DEFENSE. Joel Tiffany, for example, citing Blackstone’s description of the right, wrote that “THE RIGHT TO KEEP AND BEAR ARMS, ALSO IMPLIES THE RIGHT TO USE THEM IF NECESSARY IN SELF DEFENCE; WITHOUT THIS RIGHT TO USE THE GUARANTY WOULD HAVE HARDLY BEEN WORTH THE PAPER IT CONSUMED.” A Treatise on the Unconstitutionality of American Slavery 117–118 (1849); see also L. Spooner, The Unconstitutionality of Slavery 116 (1845) (right enables “personal defence”).

Heller, p 36

More importantly, seven years earlier the Tennessee Supreme Court had treated the state constitutional provision as conferring A RIGHT “OF ALL THE FREE CITIZENS OF THE STATE TO KEEP AND BEAR ARMS FOR THEIR DEFENCE,” Simpson, 5 Yer., at 360; and 21 years later the court held that the “keep” portion of the state constitutional right included the right to personal self-defense…

Heller, p 41

SIMILAR DISCUSSION ATTENDED THE PASSAGE OF THE CIVIL RIGHTS ACT OF 1871 AND THE FOURTEENTH AMENDMENT. For example, Representative Butler said of the Act: “Section eight is intended to enforce the well-known constitutional provision guaranteeing the right of the citizen to ‘keep and bear arms,’ and provides that whoever shall take away, by force or violence, or by threats and intimidation, the arms and weapons which any person may have for his defense, shall be deemed guilty of larceny of the same.” H. R. Rep. No. 37, 41st Cong., 3d Sess., pp. 7–8 (1871). With respect to the proposed Amendment, SENATOR POMEROY DESCRIBED AS ONE OF THE THREE “INDISPENSABLE” “SAFEGUARDS OF LIBERTY . . . UNDER THE CONSTITUTION” A MAN’S “RIGHT TO BEAR ARMS FOR THE DEFENSE OF HIMSELF AND FAMILY AND HIS HOMESTEAD.” Cong. Globe, 39th Cong., 1st Sess., 1182 (1866). Representative Nye thought the Fourteenth Amendment unnecessary because “s citizens of the United States have equal right to protection, and to keep and bear arms for self-defense.” Id., at 1073 (1866).

IT WAS PLAINLY THE UNDERSTANDING IN THE POST-CIVIL WAR CONGRESS THAT THE SECOND AMENDMENT PROTECTED AN INDIVIDUAL RIGHT TO USE ARMS FOR SELF-DEFENSE.

Heller, p 43-44

As the quotations earlier in this opinion demonstrate, THE INHERENT RIGHT OF SELF-DEFENSE HAS BEEN CENTRAL TO THE SECOND AMENDMENT RIGHT.

Heller, p 56

Nothing about those fire-safety laws undermines our analysis; THEY DO NOT REMOTELY BURDEN THE RIGHT OF SELF-DEFENSE as much as an absolute ban on handguns.

Heller, p 60

And now the dissent—the losing side (all 4 remaining justices):

Specifically, there is no indication that the Framers of the Amendment intended to enshrine THE COMMON-LAW RIGHT OF SELF-DEFENSE in the Constitution.

Stephens Dissent , p 2

They admit the right to self-defense exists (not the "self-defense excuse," mind you), they just don’t see it as having been enshrined in the Constitution. So according to the unanimous Supreme Court—all nine Justices—there is a right to self-defense. It is not “abstract” or inchoate. It is real. (For that matter it would still be real if they reversed themselves tomorrow, but that’s another story.)

Nor is the current Court the first to recognize the ancient, obvious and very fundamental right to self-defense ( http://www.davekopel.com/2A/LawRev/Self-Defense-Cases.htmhttp://www.davekopel.com/2A/LawRev/Self-Defense-Cases.htm ).

I really hope Sotomayor’s performance was a reflection of her ambition more than of her integrity or intellect. Sure, she may hate the idea of armed self-defense (or even of unarmed self-defense) as many do here. But surely she has read the Heller decision?

It would be better for America not to make Supreme Court candidates testify. The Senate could simply call character witnesses, co-workers, and others who know the candidates to testify. And review candidate legal writings and speeches.

Mandatory perjury prior to ascending to the High Court isn’t the greatest policy.