[Ed. note: This guest blog post is part of the Center’s Mini-Symposium on papers presented at the 2020 Firearms Law Works-in-Progress Workshop.]
Does inter-personal self-defense necessarily implicate the political order under which it is exercised? Many moral philosophers, as well as many gun rights advocates, argue in the negative. The justification for a defensive act against an aggressor hinges, they say, on whether the aggressor rendered herself “liable” to be killed by posing an imminent, serious, illegitimate threat to the defender; or that it is the lesser of two evils that the aggressor rather than the defender is the one to lose their life. Such rationales ostensibly hold no matter where and when the situation occurs. Others believe that self-defense is a political no less than a moral situation. That is, that the relevant actors in such situations are not just the aggressor and the defender, but also the collective and the institutions it set up. One example of such a position was articulated by the late criminal law theorist Sanford Kadish. Kadish argued that when a person defends herself against an attack by another person, she is really exercising a right against the state: the defender asserts the “the right of every person to the law’s protection against the deadly threats of others.” The state’s failure to protect the defender is what gives rise to her moral right to ward off the threat that she is faced with, and hence the state bears responsibility for the violence that ensued.
I want to sketch the suggestion that since D.C. v Heller, the Second Amendment also protects a right to self-defense against the state, but of a diametrically opposed kind. Heller’s right against the state arises not when it fails to protect subjects but when it fails to let them protect themselves. To wit, the Hellerian self-defender has a protected interest in exercising his moral judgment of a threatening other—to see to it that this judgment becomes a reality, and to restrict the state’s involvement to an ex post assessment of the legitimacy of his violence.
Kadish grounds his view of self-defense in social contract theory, which predicates the legitimacy of government on granting individuals greater protection than they would have without it. He cites leading philosophical authorities such as Thomas Hobbes and John Locke, but some qualifications are necessary before ascribing his view to either of the two founders of modern social contract theory.
Hobbes indeed held that the sovereign is under a duty to protect the citizenry from physical harm, yet this duty is not a product of individual rights. Rather, it is a matter of equal representation. The sovereign’s legitimacy hinges on representing the will of each and every subject, whose first priority is preserving life and limb. Where the Hobbesian sovereign is absent—or when his power is directed against oneself—one cannot be blamed for protecting oneself; but this is a matter of mere necessity. Hobbes lists individual entitlement to privately judge the moral virtue of actions among “the Diseases of a Common-wealth, that proceed from the poyson of seditious doctrines” [sic]. Private violence—no matter the moral presumptions that guide it—is the primary evil that government ought to eradicate; and it inevitably flows from private will unrestrained by political authority. In order for violence to be justified, not just excused, it needs to represent public rather than private will.
Notwithstanding important discontinuities between Hobbes’s framework and Kadish’s, they are roughly compatible in the sense that both mandate equal protection of all citizens while rejecting the establishment of a moral hierarchy between them.
By contrast, the main problem in a Lockean state of nature, to be resolved by the erection of a civil order, is not violence but injustice. Per Locke, each of us is entitled to determine what justice demands, by private appeal to a pre-fixed natural moral order, and to act accordingly. Setting up a political order helps to realize justice, but it remains the case that political authorities have no monopoly over the articulation and implementation of morality. Thus, Locke not only accommodates but facilitates subjects’ claims of moral superiority over others and subsequent assertion of the power to act on such claims, regardless of social structures. Each individual still possesses the power to make his moral judgment of others a legal reality—utilizing the spectrum of self-help actions stretching between civil disobedience and vigilantism. It is unsurprising that the Lockean framework, which places autonomy interests on a higher footing than safety interests, sits more comfortably with American ideology.
This is the thrust of today’s Second Amendment. The Heller Court ruled that Americans have an individual right to the effective possession and use of the means of self-defense against threats posed by other individuals. The person Heller imagines is not primarily wary of tyranny but of criminality. Among other rhetorical mechanisms, the court used the language of natural rights to justify the result it reached, seemingly employing the strictly moralistic position regarding self-defense. But this is faux naïveté. In both the worldview it expresses and the reality it creates, there is nothing natural about contemporary Second Amendment jurisprudence. Quite the opposite: it actively designs the public sphere.
As an expressive matter, the Constitution is where Americans turn to figure out their identity as a political collective and as the individuals that comprise it. At the core of these identities, Heller tells us, is, among other things, self-defense. For it enjoys auxiliary protection in the Bill of Rights: self-defensive activities, via the means of the gun, belong in the group of basic entitlements we ought to be free to enjoy without state intervention. Self-defense is elevated to a benchmark of political subjectivity. The moralistic hue it is given further implies that as a matter of natural justice, whoever possesses armed might must deserve the right to use it, and whoever finds themselves at the receiving end must be similarly deserving. Post-Heller Second Amendment rights seek to make self-defense as effective as possible, conveying the message that this effectiveness is a requirement of American identity. One must therefore find threats to defend oneself against. The legal and political climate that serves as a backdrop for Heller—with such regimes as Stand Your Ground laws and citizen’s arrest—offers an abundance of such opportunities and then renders their seizing justified.
As opposed to other criminal justice mechanisms that serve vital political functions, Hellerian self-defense closes rather than opens the space for public officials’ discretion. It eschews public interest and public reason to insert private ones in their stead. If for Hobbes and Kadish an instance of self-defense marks a political problem, for Heller it signals that all is going well.