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Shotgun News, October 1, 2005, pp. 20-21

Defending Self-Defense

Do you have a right to defend yourself? If you think that is a silly question, keep reading--because there is an increasingly willingness among those who run our society to deny that there is any such right.

Self-defense would seem among the most obvious and natural of all human rights; other human rights don't do you much good if you are dead. Yet as I have observed in my June 1, 2005 column, until 1532, it was technically illegal under English law to kill another person, even in self-defense.¹ Even states such as New York that have limited the right to use deadly force have not completely abolished the right of self-defense. You may use deadly force in self-defense within your own home, or if you no longer have the option of retreating from a criminal attack.² The idea that you have a right to defend yourself may be battered and bruised in such states, but it isn't dead.

A fair number of gun control advocates with whom I have corresponded over the years deny that there is a right to self-defense. It is not simply that they object to the use of a gun in self-defense; they object to all killing, regardless of the circumstances. I remember one conversation I had some years ago with a journalist at a San Francisco Bay Area newspaper who explained that it didn't matter if making concealed weapon permits more available reduced robbery rates, because it would mean that robbers would be killed by their victims--and that was just as bad as robbers killing their victims. I was so overwhelmed by how crazy this sounded that I was temporarily at a loss for words. (This doesn't happen very often.)

I've had several similar conversations over the years with other gun control activists who similarly argue that there is no moral justification for deadly force--ever. They see aggressor and victim as identical--equally having a right to life. The rapist has a right to live, and this takes precedence over the right of his victim to not be raped; the robber has a right to live, and this takes precedence over the right of his victim to not be threatened with death. I don't want to live in such a society, and if we could get these "no right to self-defense" sorts to more openly express these ideas, it would discredit the gun control movement quite effectively--which is perhaps why gun control advocates almost never express these sentiments in public forums.

Not every gun control advocate thinks that self-defense is a bad thing. I would guess that most Americans who support restrictive gun control are not this crazy; they have been persuaded that restrictive gun control laws will somehow reduce violence, but they do not fundamentally disapprove of self-defense--even when that involves the use of deadly force. Still, the large number of gun control advocates who have expressed to me this disapproval of self-defense makes me suspect that much of the fanaticism that drives the gun control movement stems from this bizarre moral equivalence of victim and victimizer.

At least for the last few hundred years, our legal system recognized that the right to self-defense was a direct result of the right to life and limb. William Blackstone's Commentaries on the Laws of England, published in 1769, explained the connection: "Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb.... A man's limbs... are also the gift of the wise creator; to enable man to protect himself from external injuries in a state of nature. To these therefore he has a natural inherent right; and they cannot be wantonly destroyed or disabled without a manifest breach of civil liberty.

"Both the life and limbs of a man are of such high value, in the estimation of the law of England, that it pardons even homicide if committed se defendendo [in self-defense], or in order to preserve them. For whatever is done by a man, to save either life or member, is looked upon as done upon the highest necessity and compulsion."³

Unsurprisingly, when the American colonies started to write state constitutions, a right to keep and bear arms was often associated with the right to self-defense. Pennsylvania's 1776 Constitution is one such example: "That the people have a right to bear arms for the defence of themselves and the state...."⁴ Even the few American states that do not have a right to keep and bear arms usually have a right to self-defense. One example is California's Constitution: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty...."⁵ (In case you were wondering: the California courts have refused to recognize that this clause guarantees a right to be armed in self-defense. If this seems bizarre, it is important to know that the case before them involved an inmate at Folsom Prison, who argued that he had a right to defend himself from criminal attack with a knife. I guess I'm not surprised at the California Court of Appeals not taking this claim very seriously.⁶)

So, other than a few kooks who edit many of America's most influential newspapers and television news programs, is there anyone seriously arguing against the right to self-defense? In Britain, certainly. While the laws have not completely eliminated the right, as Joyce Lee Malcolm's recent book, Guns and Violence: The English Experience points out, the right has been so limited that for practical purposes, it no longer exists. Is this idea spreading in America as well?

The Indiana Court of Appeals recently handed down a very interesting decision about this question of the right to self-defense. A man named Cecil Black was convicted of murder for shooting to death someone named John Luke in South Bend, Indiana, in September of 2003.⁷ News accounts are remarkably sparse in the details, but from the court record we can see that the prosecutors first charged Black with murder. Black at first claimed that he was acting in self-defense, then agreed to plead guilty to the lesser charge of manslaughter--then withdrew his guilty plea, and resumed his claim of self-defense.

While both sides were questioning potential jurors (the portion of the pre-trial proceedings called voir dire), the prosecution asked the trial judge to prohibit the defense from asking jurors what opinions they had about self-defense. To my surprise, the trial judge agreed, ordering the defense "in jury selection, opening statements and also evidence, that self-defense will not be advanced as a theory or referred to by counsel until such time as that defense is raised...." In short, the defense was not allowed to ask jurors if they had any moral objections to self-defense.

Black was convicted of murder. I don't know if Black was guilty or not, but I am pleased to see that the Indiana Court of Appeals recognized the injustice of what happened. The defense wasn't allowed to ask potential jurors how they felt about the right of self-defense; this meant that people who have a moral objection to self-defense would not be questioned about this.⁸ Even if Black had made a strong case that the shooting was in self-defense, jurors who object to self-defense might vote to convict him, anyway.

Make no mistake about this: the Indiana Constitution guarantees a right to self-defense--and specifically, armed self-defense: "The people shall have a right to bear arms, for the defense of themselves and the State."⁹ By denying Black's lawyer to chance to ask potential jurors if they believed in the right to self-defense, the trial judge prevented Black from receiving a fair trial. Imagine if a judge prohibited a defense attorney from asking questions about a potential juror's racial prejudices in a case where the defendant was a different race from the juror. You don't have to be a member of the ACLU to recognize that this might allow racists on the jury, and deny the defendant a fair trial.

I don't know what the circumstances were that caused the prosecutor to ask the trial judge to prohibit questioning of jurors about the right to self-defense. I can't imagine what the judge was thinking when he approved such an order. Fortunately, the Indiana Court of Appeals saw the injustice, and ordered a new trial without this absurd limitation on Black's defense attorney. In the larger scheme of things, however, it is important that we be on our guard, not only for attempts to restrict the right to keep and bear arms, but also for attempts to restrict the right to self-defense.

Clayton E. Cramer is a software engineer and historian. His last book was Concealed Weapon Laws of the Early Republic: Dueling, Southern Violence, and Moral Reform (Praeger Press, 1999). His web site is http://www.claytoncramer.com.