Uncoupling the Constitutional Right to Self-Defense from the Second Amendment: Insights from the Law of War Commentary: Gun Control Policy and the Second Amendment: Responses

This Article contextualizes Professor Nicholas Johnson’s argument that a robust right to arms is essential to the security of Black communities in the United States. While accepting Johnson’s premise that private self-defense is necessary where government is hostile towards or unable to defend a community against violence, this Article maintains that the Second Amendment as understood at the time of its ratification did not extend to private self-defense. Rather than forcefitting a private right to self-defense into the syntactically and contextually unrelated Second Amendment as one-Justice majorities have done in District of Columbia v. Heller and McDonald v. City of Chicago, the Author suggests that honest intellectual engagement with moral and philosophical claims in favor of a private right to self-defense could profit enormously from careful consideration of the jus ad bellum, the branch of public international law concerning the right of states to defend themselves against armed attack. The lack of an absolute textual command in the Constitution, federalism, and deference to democratically legitimate legislative policy making favor judicial accommodation of public safety and arms control concerns alongside private claims of self-defense. Comparing the right to self-defense in domestic law (as illustrated by the Trayvon Martin case) to the right to self-defense in public international law (as illustrated by the arguments advanced by the Bush and Obama Administrations to justify the use of unmanned drones to target Al Qaeda operatives) suggests that claims to use force in self-defense must be limited to situations in which an actual attack is underway or imminent. The Author concludes by suggesting that these limits are inherent in general principles of law basic to the very nature of self-defense, and that constitutional jurisprudence in the United States would benefit greatly from attending to these general principles of law and abandoning historically implausible and disingenuous originalism when assessing claims premised on the right to self-defense