these are notes i am preserving here for my own personal access, if i can acquire them no other way. you may or may not find the notes and the links in here of any interest. feel free to peruse them, there is interesting stuff here if you are at all interested in this sort of stuff. otherwise, it is pretty deadly. laughing.
http://volokh.com/posts/1216847930.shtml from a post in the blog “volokh conspiracy”, discussing self defense under natural law theory, with a couple of publish comments on various cases.
http://volokh.com/archives/archive_2008_07_13-2008_07_19.shtml#1216392861 also an article by david b. kopel, in which very long quotes from sections of john lock’s works are listed, and also a section on common law views on natural rights of self defense as propounded in state court decisions. a very good source.
for background, here is locke on the fundamental law of nature, man being to be preserved as much as possible from his second treatise:
sec. 6: . . .e very one, as he is bound to preserve himself, and not to quit his station willfully . . . .
sec. 16. the state of war is a state of enmity and destruction: and therefore declaring by word or action, not a passionate and hasty, but a sedate settled design upon another man's life, puts him in a state of war with him against whom he has declared such an intention, and so has exposed his life to the other's power to be taken away by him, or any one that joins with him in his defence, and espouses his quarrel; it being reasonable and just, i should have a right to destroy that which threatens me with destruction: for, by the fundamental law of nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred: and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion; because such men are not under the ties of the common law of reason, have no other rule, but that of force and violence, and so may be treated as beasts of prey, those dangerous and noxious creatures, that will be sure to destroy him whenever he falls into their power. . . .
sec. 19. . . . but force, or a declared design of force, upon the person of another, where there is no common superior on earth to appeal to for relief, is the state of war: and it is the want of such an appeal gives a man the right of war even against an aggressor, tho' he be in society and a fellow subject. Thus a thief, whom I cannot harm, but by appeal to the law, for having stolen all that I am worth, I may kill, when he sets on me to rob me but of my horse or coat; because the law, which was made for my preservation, where it cannot interpose to secure my life from present force, which, if lost, is capable of no reparation, permits me my own defence, and the right of war, a liberty to kill the aggressor, because the aggressor allows not time to appeal to our common judge, nor the decision of the law, for remedy in a case where the mischief may be irreparable. Want of a common judge with authority, puts all men in a state of nature: force without right, upon a man's person, makes a state of war, both where there is, and is not, a common judge.
sec. 25. . . . men, being once born, have a right to their preservation . . . .
sec. 128. for in the state of nature, to omit the liberty he has of innocent delights, a man has two powers.
the first is to do whatsoever he thinks fit for the preservation of himself, and others within the permission of the law of nature . . . .
sec. 129. the first power, viz. of doing whatsoever he thought for the preservation of himself, and the rest of mankind, he gives up to be regulated by laws made by the society, so far forth as the preservation of himself, and the rest of that society shall require; which laws of the society in many things confine the liberty he had by the law of nature. . . .
sec. 131. but though men, when they enter into society, give up the equality, liberty, and executive power they had in the state of nature, into the hands of the society, to be so far disposed of by the legislative, as the good of the society shall require; yet it being only with an intention in every one the better to preserve himself, his liberty and property; (for no rational creature can be supposed to change his condition with an intention to be worse) the power of the society, or legislative constituted by them, can never be supposed to extend farther, than the common good; but is obliged to secure every one's property, by providing against those three defects above mentioned, that made the state of nature so unsafe and uneasy. . . .
sec. 134. the great end of men's entering into society, being the enjoyment of their properties in peace and safety, and the great instrument and means of that being the laws established in that society; the first and fundamental positive law of all commonwealths is the establishing of the legislative power; as the first and fundamental natural law, which is to govern even the legislative itself, is the preservation of the society, and (as far as will consist with the public good) of every person in it.
sec. 135. though the legislative, whether placed in one or more, whether it be always in being, or only by intervals, though it be the supreme power in every common-wealth; yet,
first, It is not, nor can possibly be absolutely arbitrary over the lives and fortunes of the people: for it being but the joint power of every member of the society given up to that person, or assembly, which is legislator; it can be no more than those persons had in a state of nature before they entered into society, and gave up to the community: for no body can transfer to another more power than he has in himself; and no body has an absolute arbitrary power over himself, or over any other, to destroy his own life, or take away the life or property of another. A man, as has been proved, cannot subject himself to the arbitrary power of another; and having in the state of nature no arbitrary power over the life, liberty, or possession of another, but only so much as the law of nature gave him for the preservation of himself, and the rest of mankind; this is all he doth, or can give up to the common-wealth, and by it to the legislative power, so that the legislative can have no more than this. Their power, in the utmost bounds of it, is limited to the public good of the society. It is a power, that hath no other end but preservation, and therefore can never have a right to destroy, enslave, or designedly to impoverish the subjects. The obligations of the law of nature cease not in society, but only in many cases are drawn closer, and have by human laws known penalties annexed to them, to inforce their observation. Thus the law of nature stands as an eternal rule to all men, legislators as well as others. The rules that they make for other men's actions, must, as well as their own and other men's actions, be conformable to the law of nature, i.e. to the will of God, of which that is a declaration, and the fundamental law of nature being the preservation of mankind, no human sanction can be good, or valid against it.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1172255 a link to an apparent draft portion of an article by kopel, david b., the natural right of self-defense: heller’s lesson for the world (july 23, 2008) syracuse law review, vol. 58, 2008.
this post makes no pretense of literary merit.
all that i doing in this post is copying the text of several footnotes that appear in a pdf document that I found in the last link and printed for myself. whether they appear in the Syracuse law review article I haven’t the foggiest idea.
i do not much care.
but, the information appearing in these footnotes is a treasure trove, reflecting a wealth of scholarship and research on the part of professor kopel, and must be preserved. that is all there is to it, so i am setting them out.
the footnotes follow.
n. 15. see, e.g., people v. young, 825 p.2dn 1004, 1007 (colo.app., 1991)(citing the 1960 colorado supreme court decision vigil v. people that “self-defense is a natural right which is based on the law of self-preservation”); fich v. state, 445 so.2d 964, 966 (ala.crim.app., 1983)(“we agree with a proposition expounded in blankenship, supra, that : ‘self-defense is a common instinct and a natural right, and, as we understand it, means standing one’s ground and repelling, as a means of self-protection, unprovoked force with force.’”); miller v. state, 119 n.w. 850, 857(wis. 1909)(“the divine right of self-defense”). hummel v. state, 69 okla.crim. 38, 99 p.2d 91 (okla.crim.app., 1940)(“the law adopts the natural right of self-defense, because it considers the future process of law an inadequate remedy for present injuries accompanied with force.”); national life & assoc. ins. co. v. turner, 174 so. 646, (la.app., 1937)(“the right of self-defense is a natural right.”); alien v. currie, 8 la.app. 30 (la. App., 1928)(“even men of mature years will, in the exercise of their natural right of self-defense, meet or repulse any aggressor who may attempt to encroach on their rights. this is unquestionably true.”); people v. burns, 300 ill. 361, 366, 133 n.e. 263 (ill. 1921)(“when a citizen exercises the right of self-defense, he is not taking the law into his own hands. he is simply exercising a natural right which the law recognizes and protects.”); state v. Arnett, 258 mo. 253, 167 s.w. 526 (mo. 1914)(if a statute against exhibiting a weapon in an angry manner “was designed to abrogate the right of self-defense, and if its effect be to do so, it is then more than possible that its constitutional validity might well be questioned, for that it whittles away a part of that ‘natural right to life, liberty and the enjoyment of the gains of their own industry,’ which is vouchsafed to the citizen by the organic law, section 4, art. 2, const.mo.”); people v. Watson, 165 cal. 645, 133 p. 298 (1913)(“while defendant’s conduct with the woman was immoral, it did not take away from him the natural right of self-defense …”); railroad commission of ohio v. hocking valley r. co,, 82 ohio st. 25, 91 n.e. 865 (1910)(“by universal consent self-defense is recognized as a natural right of every individual and of every collection of individuals.”); robinson v. territory, 16 okla. 241, 85 p. 451 (indian terr., 1905)(“the right of self-defense is founded upon the natural right of a man to protect himself against the unlawful assault upon him by another.”; st. louis southwest ry. co. v. berger, 64 ark. 613, 44 s.w. 809 (1898)(railroad cannot be sued because of an employee’s act of lawful self-defence. the employee’s self-defense is “not within any employment he may make, being a natural right which he can neither surrender, nor gratify by any contractual act …”); thornton v. taylor, 19 ky .. rptr. 320, 39 s.w. 830 (ky., 1897)(“the right of self defense rests on the natural right.”); state . mcgonigle, 14 wash. 594, 45 p. 20 (1896)(“the plea of self-defense rests on the natural right.”); konigsberger v. harvey, 123 or. 286, 7 p. 114 (1885)(“the law upon that subject is the same as it was 500 years ago. the right of self-defense is a natural right, inherent in mankind …”); isaacs v. state, 25 texas 174, 177 (1860)(“it is the necessity of the case, and that only which justifies a killing -- on that necessity the right t kill rests, and when the necessity ceases, the right no longer exists. this limitation, which the law puts on the right of self-defense, is founded on the same law of nature and reason which gives the right of defense; and it does not restrain it, but protects it and prevents its abuse by those who would, under its color and the pretense of defense, seek to gratify revenge or an occasion to kill.”)
even in the south on the eve of the civil war, the natural right of self-defense guaranteed the right to a free black to use violence against a white law enforcement officer:
the conviction of the defendant may involve the proposition that a free negro is not justified, under any circumstances, in striking a white man. to this, we cannot yield our assent …. .
an officer of the town having a notice to serve on the defendant, without any authority whatever, arrests him and attempts to tie him!! is not this gross oppression? for what purpose was he to be tied? what degree of cruelty might not the defendant reasonably apprehend after he should be entirely in the power of one who had set upon him in so highhanded and lawless a manner? was he to submit tamely?—or, was he not excusable for resorting to the natural right of self-defense?
upon the facts stated, we think his honor ought to have instructed the jury to find the defendant not guilty. There is error. Venire de novo.
state v. davis, 52 n.c. 52 (7 jones)(1859).
a decision from a few decades earlier shows the connections with the english and american common law natural right:
the right of necessary defence, in the protection of a man’s person or property, is derived to him from the law of nature, and should never be unnecessarily restrained by municipal regulation, however proper it may be for every well ordered community to be tender of the public peace, and careful of the lives of its citizens, there can be neither policy or propriety in extending this tenderness and care so far as to protect the robber, the burglar and the nocturnal thief, by an unnecessary restraint of the honest citizens’ natural right of self-defence. Sir Matthew hale, in speaking on this subject, says, “the right of self-defence in these cases is founded in the law of nature, and is not, nor can be superseded by the law of society. before societies were formed, the right of self defence resided in individuals, and since, in cases of necessity, individuals incorporate into society, can not resort for protection to the law of society, that law with great propriety and strict justice considerth them as still, in that instance, under the protection of the law of nature.”
gray vs. combs, 30 ky. 478 (1832). hale was lord chief justice of england from 1671-76, and one of the most influential of all common law judges and treatise authors. the quote actually appears to be from michale foster, crown cases and crown law 273-274 (1762). foster was a judge of the court of king’s bench from 1745 to 1763, and was much respected by blackstone. This quote, with the attribution to foster, appears in the 1847 american annotated edition of mattthew hale, 1 history of the pleas of the crown 478 n. 1 (w.a. stokes & a. ingersall eds., phil., 1847)(1732)(note added by editor.) because the 1847 “first american editon” of hale post-dates the 1832 court decision, it seems probable that the Kentucky court was using an english edition of hale which also included an editor’s annotation with the foster language.
to muddy the trail a little further, part of the quote appears in parrish v. commonwealth, 81 va. 1 (1884), citing to hale as quoted in “rutherforth institutes”—which means thomas rutherforth, institutes of natural law: being the substance of a course of lectures on grotius de jure belli et pacis read in st. john’s college, cambridge ch. 16 (1st pub. 1754-56)(a series of english-language lectures on grotius [infra} and natural law; rutherforth’s treatise was very popular in the united sates in the 18th and 19th centuries). cf. commonwealth v. rilely, thacher’s crim. cas. 471, 474-75 (boston mun.ct., mass., 1837)(citing foster: “in the case of justifiable self-defence, the injured party may repel force by force in defence of his person, habitation, or property, against one who manifestly intendeth and endeavors by violence or surprise, to commit a known felony upon either. it is justly considered that the right I such case, is founded in the law of nature, and is not, nor can be superseded by any law of society. there being at the time no protection from society, the individual is remitted for protection to the law of nature.”
from the text:
…. gratian’s “treatise on the discordant canons” consolidated and synthesized disparate sources in various canon laws (church laws). he began with an explanation of natural law:
natural law is common to all nations because it exists everywhere through natural instinct, not because of any enactment. it includes the union of men and women, the succession and rearing of children, the identical liberty of all in the acquisition of those things, which i omit, which are taken from the earth or at sea, the return of a thing deposited or of money entrusted, and the repelling of violence by force. this, and anything similar, is never regarded as unjust but is held to be natural and equitable.[note 18.]
[note 18] gratian, the treatise on laws (decretium dd. 1-20) with the ordinary gloss 6 (augustine thompson & james gordley trans., catholic u.pr. of american, 1993)(approx. 1150)(distinction one, case 7, sec. 2). In the original:
Ius natural est commune omnium nationum, eo quod ubique instinctu naturae, non constitutione alique habetur, ut uiri et feminae coninctio, lierorum succession et education, communis omnium possession et omnium una libertas, acquistitoi eorum, quae cello, terra marique capiuntur; itsm depositae rei uel commendateae pecuniae restitution, uiolentiae per uim repulsion. Nam hoc, aut si quid huic simile est, numquam iniustum, sed natural equumque hacetur.
like self-defence, the natural law right of marriage and child-raising is not enumerated in the united states constitution, but is a constitutionally-protected fundamental right. see, e.g., zablocki v. redhaild 434 u.s. 374 (1978)(marriage is a fundamental right.); meyer v. nebraska, 262 u.s. 390 (1923)(raising children.)
the right to assemble, with which the right to arms was construed in pari material:
existed long before the adoption of the constitution of the united states. in fact, it is, and always has been, one of the attributes of citizenship under a free government. it “derives its source,” to use the language of chief justice marshall, iin gibbons v. ogden, 9 wheat. 211, “from those laws whose authority is acknowledged by civilized man throughout the world.” it is found wherever civilization exists. it was not, therefore, a right granted to the people by the constitution. the government of the united states when established found it in existence, with the obligation on the part of the states to afford it protection.
united states v. cruishank, 92 u.s. 542, 551-53 (1876)(including similar analysis regarding the “the right … of ‘bearing arms for a lawful purpose.’ this is not a right granted by the constitution. neither is it in any manner dependent upon that instrument for its existence.”)
see kopel, the human right of self-defense; see also david b. kopel, the torah and self-defence, 109 penn state l. rev. 17 (2004); david b. kopel, the religious roots of the american revolution and the right to keep and bear arms, 17 j. firearms & pub. pol’y 167 (2005)(early americans’ views of ancient israel as their role model).