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Tuesday, March 18, 2008

A Tangential Thought on Heller: What About "Poor Joshua"?

I will confess to not having as strong a feeling about the D.C. gun control case as it seems most everyone else does, especially today. That being said, there's one idea/argument I haven't really seen anywhere that I'm curious about:

One of the major arguments in defense of an individual right, as I understand it, is the need for private self-defense -- for the ability of citizens to defend themselves from private, and not just governmental, violence. Taking that argument at face value, it seems to tie very closely together to the existence vel non of an affirmative right to governmental protection from private violence -- something the Supreme Court has treated with significant  (and, in my opinion, troubling) skepticism first in DeShaney v. Winnebago County and more recently in City of Castle Rock v. Gonzales.

So here is my potentially naive question: If one takes the private self-defense argument seriously, mightn't that argument inevitably depend upon DeShaney and Castle Rock? Put another way, might there not be a potentially significant connection between whether one believes that there should be a right to police protection and whether one believes that there should be a right to protect one's self?

Posted by Steve Vladeck on March 18, 2008 at 12:23 PM in Constitutional thoughts, Culture, Current Affairs, Steve Vladeck | Permalink


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So I think what the Court is saying is: Guns don't kill people, habeas kills people.

Posted by: LH | Jun 26, 2008 5:17:33 PM

Steve, kudos to you for a very thoughtful and meaningful post. I believe the key issue here is that there is no constitutional duty imposed upon State actors acting under the color of state authority/law to intervene or protect us from the harms inflicted by private citizens. The key argument, I feel, in DeShaney was that the majority chose to take a very formalistic reading of the 14th Amendment and avoid expanding any state liability, especially in a failure to act case such as DeShaney. Of course, this relates to gun control, although few have been as incisive as you to point that out. This will be interesting--the police are not bound to protect us from private violence--so where do we turn? It's almost predictable we'll see a case come up on this issue, in the next few years. KH

Posted by: Karen | Mar 18, 2008 5:55:34 PM

DeShaney and Castle Rock notwithstanding, I think that there is a right, under the Equal Protection Clause, to the "protection of the laws." States have the obligation to provide law-enforcement and remedial services. However, even if such a constitutional duty exists, states cannot supply the protection of the law perfectly. See here at notes 169-170. Chitty's 1867 edition of de Vattel's Law of Nations: "[A] traveler may, without hesitation, kill the robber who attacks him on the highway; because it would, at that moment, be in vain for him to implore the protection of the laws and of the magistrate." Justice Field sitting on circuit in 1868: "By imminent danger is meant immediate danger--one that must be instantly met; one that can not be guarded against by calling on the assistance of others or the protection of the law." Just because the government is duty-bound to respond doesn't mean it will (in time). That said, I do think that DeShaney and Castle Rock give added urgency to a right of self-defense.

Posted by: Chris | Mar 18, 2008 1:45:27 PM

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