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

This Article contextualizes Professor Nicholas Johnson’s argument that arobust right to arms is essential to the security of Black communities in the UnitedStates. While accepting Johnson’s premise that private self-defense is necessarywhere government is hostile towards or unable to defend a community againstviolence, this Article maintains that the Second Amendment as understood at thetime of its ratification did not extend to private self-defense. Rather than forcefitting a private right to self-defense into the syntactically and contextuallyunrelated Second Amendment as one-Justice majorities have done in District ofColumbia v. Heller and McDonald v. City of Chicago, the Author suggests thathonest intellectual engagement with moral and philosophical claims in favor of aprivate right to self-defense could profit enormously from careful consideration ofthe jus ad bellum, the branch of public international law concerning the right ofstates to defend themselves against armed attack. The lack of an absolute textualcommand in the Constitution, federalism, and deference to democraticallylegitimate legislative policy making favor judicial accommodation of public safetyand arms control concerns alongside private claims of self-defense. Comparingthe right to self-defense in domestic law (as illustrated by the Trayvon Martincase) to the right to self-defense in public international law (as illustrated by thearguments advanced by the Bush and Obama Administrations to justify the use ofunmanned drones to target Al Qaeda operatives) suggests that claims to use forcein self-defense must be limited to situations in which an actual attack is underwayor imminent. The Author concludes by suggesting that these limits are inherent ingeneral principles of law basic to the very nature of self-defense, and thatconstitutional jurisprudence in the United States would benefit greatly fromattending to these general principles of law and abandoning historicallyimplausible and disingenuous originalism when assessing claims premised on theright to self-defense