Uncoupling the Constitutional Right to Self-Defense from the Second Amendment: Insights from the Law of War

Abstract

This article responds to two powerful and seemingly antagonistic arguments that have gained wide currency in academic literature and the popular press in the last few years. The first is that firearms are necessary to realize the right to self-defense – particularly for people and communities who cannot count on government protection. The second, with which the current author is often associated, is that notwithstanding the opinions of Justice Scalia in District of Columbia v. Heller and Justice Alito in MacDonald v. City of Chicago, serious historical inquiry cannot support the claim that the Second Amendment as originally understood contemplated private access to firearms for purposes of personal self-defense. This article suggests that the entirely valid concerns of those favoring constitutional enforcement of a fundamental right of individual self-defense would be better and more honestly served by judicial analysis of the law of self-defense in terms of general principles of law familiar from the international law of armed conflict, and incorporation of those principles into U.S. constitutional jurisprudence through procedural due process, substantive due process, the Ninth Amendment, Privileges or Immunities, and allied constitutional doctrines long associated with federal judicial enforcement of constitutional rights not specified in the constitutional text.