(courtesy agentgearusa.com)

“I wonder if the primacy of individual self-defense under Heller and McDonald might not have implications for other areas of the law. At the core of Heller and McDonald is a constitutionalization of the right of self-defense. The right of individuals to protect themselves against violence is so important that it is, in many ways, beyond the power of the state to regulate. Though the state might prefer to sacrifice citizens’ lives and safety in order to limit gun ownership, such a sacrifice is not permitted. This indicates that individual citizens’ lives and autonomy are themselves, in some important aspects, beyond the power of the state to sacrifice.” – Professor Glenn Reynolds, The Second Amendment as Ordinary Constitutional Law [via Tennessee Law Review, Vol. 81, p. 409, 2014]  (h/t JT&T)

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38 COMMENTS

    • Yes, but laying out a long logical argument, detailing the why’s the history, the penumbras, and historical legal precedent is a much stronger argument in courts than “they are inalienable” and “shall not be infringed”.

      If the plain meaning of words worked, we would not be in court so much. Having men like Prof Reynolds tell the story and ideas to a broader audience of pointy heads and legal scholars does us more good than 500 people on a board yelling that “shall not be infringed” really means something.

      • detailing the why’s the history, the penumbras, and historical legal precedent

        Science guy that I am, I was wondering… what’s this guy doing throwing in lights and shadows and stuff? Thanks for forcing me to look up another definition of a word I thought I well knew.

    • And, it’s also important to refer to it properly, as “in-a-lien-able” or “un-a-lien-able.” As in “a lien” against property, something processed by one person, but the rights to held by another (eg, mortgage or car note.)

      It’s “un-a-lien-able”, the rights cannot be bartered, transferred, or surrendered.

      Not as it’s commonly referred, “in-alien-able” or “un-alien-able.” As in a foreign body or species, or being alienated or isolated.

      It’s un-a-lien-able right, it cannot be liened against.

      • No.” un-or in-alienable” has never implied that in property law. Many of the founders actually wound up in debtor’s prison after the revolution. The right is that property cannot be taken by anyone without due process. You can contract away your right to property. Otherwise, that used car you sold your neighbor is still yours. If you buy a house with a mortgage, it’s still the banks until you pay it off. That’s the inalienable property right of the bank and its shareholders who loaned you the money in the first place. A mechanic’s lean on your A/C or water heater, is recognition not only in the contractor’s ownership of the property, (until paid for) but also that his time, skill and expertise is valuable too.

      • Yes, well, any way you break it down to try to understand it, it would certainly appear that “lien” is the base root of the word “alien” AND inalienable/unalienable. It would be logical to assume that an “alien” belonged to some other place from which origin he could not be transferred, hence; a – lien, in that his place of birth is something he cannot sell, lose, or give away.

    • Yes, but…

      “Inalienable rights” is referenced in the preamble to The Declaration of Independence which is for some reason not considered to be a legal document of our founding(?)! The term does not appear anywhere in the Constitution itself, so far as I am aware.

      The Bill of Rights lists (approximately) 28 of what we, and the Founders, generally consider “Natural Rights” that the government is prohibited from interfering with both because they were not given the Authority in Article I, Section 8 and because the men who wrote those first ten amendments felt they were individual rights of such importance that the government created by the people should NOT have the authority or even the consideration of interfering with them.

      So while we may reasonably consider them to be among the inalienable rights, they are not specifically listed as such.

      • The 9th Amendment:
        The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

        http://legal-dictionary.thefreedictionary.com/_/dict.aspx?rd=1&word=9th+Amendment

        In my reading of the 9th Amendment it was a concern that by enumerating rights, it left all other rights not listed up to the gov’t’s discretion. This was a huge concern.

        So, the 9th A was added as hedge against being barred any right not expressly written. It’s doesn’t not have to be expressly written in the Constitution to be a right retained by the people. Thus, no right is to be less important than another, or somehow not unalienable because it wasn’t expressly written as such.

        My 2 cents

  2. This is correct. You see, the power hierarchy should go like this.

    We the People > State government > Federal government

    But try telling someone in Congress and watch them laugh at you.

      • That’s a common misunderstanding, especially with regard to law. People tend to think of states as mini-federal governments and that state laws the minor league to the federal government’s major league. In reality, it isn’t so much that federal laws are bigger and badder and therefore trump state laws, it’s that state and federal laws simply cover different aspects of society. Yes, I’ve heard of the Constitution and, yes, I’m aware of the Supremacy Clause. I’m just saying that the most significant philosophical differences between states and the federal government have more to do with scope than scale.

        Local governments, including counties, municipalities, etc., legally are political subdivisions of the state are actually are mini-states, in that regard. Such subdivisions exist per the state and can be dissolved. The federal government, by contrast, has no unilateral authority to abolish a state or adjust its boundaries.

        • The States exercise all the same powers, including military powers through the National Guard, as the federal government. If you look at the legal structure of a state you will see that it is perfectly parallel to the federal government within its constitutional realm. Local governments are and should be the place where the citizen has his most common interaction with government organizations

        • There are parallels in structure, but that can be said of private companies, as well. What matters are the authorities, and those are vastly different between state and federal.

          Take military and the National Guard you mentioned, as an example. The federal government can call up the national guard for federal service. The states cannot call up the U.S. armed forces for state service. Even the states’ use of their own National Guard units is limited. A state cannot send their units abroad or into another state on their own.

          Aside from the numerous mentions of the militia and military forces, and Congressional and Presidential control thereof, found in the Constitution, check out the legislative record. Highlights include the Militia Act of 1792, the Dick Act of 1903, the National Defense Act of 1916, and the National Guard Status Act of 1933. Plus the Total Force Policy of 1973.

          The historical record from the War of 1812, the Civil War and Reconstruction, through the 20th century to today is all very telling, as well. States are not mini federal governments in anything more than superficial terms.

          I will agree on local governments being closest and most responsive to the People, but that’s more of a tangential point.

        • While your arguments are valid in context, I believe you misunderstood the use of “>”, which means “Greater Than.”

          As such, the statement reads: We the People (are greater than) State government (which is greater than) Federal government

          Which is the proper hierarchy as envisioned by the Founders:

          “[…]it is the Right of the People…to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

          “We the People of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessing of Liberty to ourselves and our Posterity, do ordain and establish this Constitution, for the United States of America.”

          Pretty much says it all.

    • RULE 1 – “Power is not only what you have, but what the enemy thinks you have.” Saul Alinsky, “Rules for Radicals

      Note this is given as Rule #1.

      If you act as if you have the power and/or authority and no one is willing or able to contradict or stop you, eventually you DO have the power and authority.

  3. I hope this guy is tenured, what he’s speaking is heresy in those circles.

    • He is. he is a long standing Legal prof. in Tenn. He also has been called “the blog father” for being the guy behind (and still running) Instapundit.com

      • http://pjmedia.com/instapundit/ is a daily read for me, probably more than a couple times a day. One of the best news aggregators for the right-of-center, liberty-leaning among us. Very pro-rights, pro-gun owners, etc. Worth a visit daily.

        Oh, his site’s ads and his readers using his Amazon shopping link likely pays him more than his salary at UTenn Knoxville. Tenure? Who needs tenure?

  4. While I agree with Professor Reynolds arguments I wish to note that he exemplifies that attitude of what I call the faux Libertarian. It is not the autonomy that is beyond the power of the state to sacrifice, it is his liberty that is beyond reach. It is impossible to live in society without sacrificing some personal autonomy. Our actions will always affect others and the maintenance of civil society requires us to surrender some of our autonomy. Liberty is a political concept, autonomy is social concept. Constitutional government is the realm of the political not social

    • See the race known as “Solarians” in Isaac Asimov’s books for an interesting thought exercise on a “society” that is sparsely populated so that no one individual can impose on another, and the degeneration that results in.

    • “Liberty is a political concept, autonomy is social concept.”

      Interesting, but IMO the purpose of Article I, Section 8, was to define those liberties the People were agreeing could be/should be entrusted to the Federal Government they were creating. It was intended to be a sever limitation in order to prevent over-reach by a centralized government authority with too much power. A shame it has not worked perfectly as such.

      The concept of personal liberty I believe was enshrined in the freedom to move from place to place within the Union if you found political or economic conditions in one place too onerous, or in another just more to your liking.

      It is further enshrined in the First and Second Amendments wherein we are guaranteed the right to speak out against, petition, and in extremis, abolish, the government the People have created.

      • But that is not autonomy. The state can and does limit your personal autonomy. For example, if you help produce a child the state can demand you pay for it. This places limits on your personal autonomy but does not effect your political liberty. Being required to pay child support does not prevent your from exercising your political rights.

        Faux Libertarians aren’t really interested in liberty as much as they say. At best they confuse the two concept but it is more likely that they believe the state can place no limit on your autonomy. Why do you think people like Professor Reynolds advocate the abolition of marriage and the family under the false flag of “privatization.” There is no social institution that place more constraints on your autonomy than marriage and family.

  6. Great quote. Also, the latest Harvard Law Review has several good articles on 2A issues by Kopel, Gura and others. It must be HLR’s spring Guns and Ammo edition. Well worth the AI’s time. Check them out.

  9. I would like to see the “self defense” principal applied to other freedoms and guarantees of God-given freedoms that our U.S. Constitution “protects.” Self-defense predates the Magna Carta, and all written contracts of man. Self-defense is a principle known the world over, and is a natural law, or God-given law or principle. it is an absolute defense.

    In the case of George Zimmerman, his attorneys did not argue “Stand Your Ground” or any other legal statute. They argued something all jurors knew about intuitively, naturally, as people. Everyone knows that you have a right, even an obligation, to defend yourself and your family against attack. From that general principal, the less ancient, though effective, Castle Doctrine, has come into state laws.

    • SYG is an interesting type of law. It’s basically codified common sense. If one has a right to self defense and one has a legal right to be in a particular location, then it would be absurd to invalidate the simultaneous exercise of those two rights by imposing some artificial duty to retreat.

      Yet, prosecutors in the past did have that disturbing and troublesome tool available to them. So they would use it. Now, with SYG, prosecutors don’t attempt that tack because SYG is there to counter if they did.

      SYG, therefore, in silence and stillness, preserves other rights without it even being invoked. In that way, it’s similar in function to the Second Amendment itself. The 2A serves as a persuasive reminder of the 1A and all of the others. It’s also the only amendment that is only needed when they try to take it away. A lot like SYG. Beautiful things, both.

  10. It’s worthwhile to click on the link and download the law review article. If you only have time to read the forward, read that part. It has a good legal history of the Second Amendment.

    Glenn Reynolds was instrumental in creating a shift away from predominantly thinking about the second amendment in terms of hunting and recreational arms to more military-style weapons and fundamental rights. It is not a stretch to say that the U.S. Supreme Court’s rulings in Heller and McDonald would not have happened without the scholarship put out by Reynolds and the Tennessee law school in the early 1990s. .

  11. The ability to defend life goes hand in hand with the right to life.

    A right unprotected is a right unassured.

  14. This is not “quote of the day” nor is it the “quote of the month”. I hereby nominate this for “QUOTE OF THE YEAR!”

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