Since when do people think they have an inalienable human right to be vigilantes?
I understand that people want to feel safe and believe that having a gun in the home will enable them to defend themselves. And I understand that acting in one’s self-defense is a legitimate legal defense. But using the language of self-defense to defend oneself in the (rare) case of shooting an assailant is not the same thing as asserting a human right to defend oneself.
To be sure, if we read a foundational text like John Locke’s Second Treatise of Government, we find a natural right to punish anyone who would harm us in our life, liberty, health, or possessions. In the state of nature, Locke tells us, each person is effectively judge, jury, and executioner unto herself. And, of course, it’s precisely the problem of a lack of independent judgment in the state of nature that leads people to join together to form a political community.
But for people to establish a political community, Locke asserts that people must give up to the government their natural right to punish criminal behavior and agree to have the government settle grievances. This is why we have standing laws that are meant to be applied equally by independent officers of the law and by the courts.
So, again, where is all of this talk of self-defense and vigilantism coming from?
Is all of this talk about some sort of basic human rights to self-defense because the Supreme Court, in Heller, ruled that people have the right to own handguns for self-defense? From that, it seems people have been working very, very diligently to derive some sort of right of self-defense. But what would that even mean and from where would it be derived?
Here’s Justice Scalia’s reasoning:
Between 1789 and 1820, nine States adopted Second Amendment analogues. Four of them—Kentucky, Ohio, Indiana, and Missouri—referred to the right of the people to “bear arms in defence of themselves and the State.” See n. 8, supra. Another three States—Mississippi, Connecti-cut, and Alabama—used the even more individualistic phrasing that each citizen has the “right to bear arms in defence of himself and the State.” See ibid. Finally, two States—Tennessee and Maine—used the “common de-fence” language of Massachusetts. See Tenn. Const., Art. XI, §26 (1796), in 6 Thorpe 3414, 3424; Me. Const., Art. I, §16 (1819), in 3 id., at 1646, 1648. That of the nine state constitutional protections for the right to bear arms en-acted 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 provi- sions to protect an individual right to use arms for self- defense. See n. 9, supra; Simpson v. State, 5 Yer. 356, 360 (Tenn. 1833).
This is impossibly bad logic.
First of all, the argument is that the Founders must have understood the Second Amendment to connect the right to keep and bear arms directly to self-defense because nine states later enacted analogues to the Second Amendment that explicitly make this connection. But, clearly, what some people did after the Bill of Rights was drafted tells us nothing whatsoever about what other people thought while drafting the Bill of Rights. We might just as easily reach the opposite conclusion, namely that these state constitutions were attempting to make explict a connection between the right to bear arms and the idea of self-defense because such a connection wasn’t explicit in the Second Amendment itself.
Secondly, the argument proceeds from straightforwardly noting that one reason for a right to keep and bear arms is so that those arms might be used for self-defense to the enumeration of a right to self-defense. That is, the Second Amendment might be understood to say that we have a right to keep and bears arms so that we might lawfully defend ourselves, either individually or collectively. But that doesn’t mean that we have a natural right to self-defense; it means we have a right to keep and bear arms, as we have always known, and that one reason is for self-defense. Other reasons might be to go hunting or target shooting. But we don’t thereby have a human right to hunt or shoot at targets, do we? I have yet to hear anyone make an argument for a human right to shoot clay pigeons, but it necessarily follows if someone wants to argue that we have a human right to self-defense even in a society with a fully-functioning police force, court system, and penal system.
Perhaps some will argue that we cannot rely on the police, the courts, and prisons to protect us from criminals. I disagree, of course, but Locke has an answer there as well. If the government cannot protect us or chooses not to, Locke tells us, then we are no longer compelled to obey the government and can simply replace it with one better suited to the tasks we’ve assigned to it.
If the police force is insufficient, perhaps we need to raise taxes in order to fund more officers or better training. If changes need to be made to the prison system or to the way that officers of the court do their jobs, we have ways of changing these institutions that do not require us to take up arms. And if our politicians will not make the changes we desire, we have a way to keep them responsive to us: regular elections.
If you want to own a gun, the Second Amendment declares that it is your right and the Heller decision reaffirms it while removing the seeming restriction of the militia clause. But nowhere does anyone say anything about a right to self-defense that would enable people to wander around as vigilantes, pretending that each is judge, jury, and executioner unto himself as though we were living in Locke’s state of nature and not in civil society.
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