Do Rights Pre-date Governments?
The Supreme Right of Self-Defense
by Fred E. Foldvary, Senior Editor, July 20, 2009
When Supreme-Court nominee judge Sotomayor was asked whether there is a right to self-defense, she did not say “yes.” Her answer was that it would depend on state law.Moreover, when asked her judicial philosophy, her answer was, “fidelity to the law.” She could have said “fidelity to the Constitution.” Perhaps by “the law” she includes Constitutional law, but it is not clear.
The specific words “self-defense” are not in the Constitution. They are implied in the right to bear arms, but more fundamentally, the right to self-defense is a natural and common-law right recognized by the Ninth Amendment to the US Constitution. That amendment in the Bill of Rights says that the US Constitution recognizes rights held by the people even if they are not listed in the Constitution. Hence they exist prior to the Constitution as common-law and natural-law rights.
What can be a greater natural right than the right to defend oneself against threats? Natural rights imply a natural law, what the philosopher John Locke called a “law of nature.” Nowadays these are also called “human rights,” and these are recognized as existing apart from the laws of a country, i.e. they do not come from government but are inherent in humanity.
That is why it is disturbing that judge Sotomayor did not answer the question in the affirmative. By referring to state law, she implied that she was ignoring the Ninth Amendment. Perhaps she did not want to venture into the right to bear arms, but the right to self-defense is much greater than the gun issue. One can defend oneself by many other means.
In 2004, judge Sotomayor stated that "the right to possess a gun is clearly not a fundamental right." Also, during the hearing, Sotomayor said she did not know if there was a personal right to self-defense. She said she could not think of a Supreme Court case on that issue.
Aside from the 2nd Amendment issue about guns, Sotomayor evidently either does not believe that there are 9th Amendment rights, or else she is unsure whether self-defense is a natural right. But if natural rights exist, then surely self-defense must be included, indeed as the supreme right. And even if Sotomayor does not believe in self-defense, surely she must be aware of common law, and so she either has little knowledge of common law derived from England, or she believes that common law does not provide a right to self-defense.
Sotomayor does believe that there is a right to privacy, which forms the basis of rulings on abortion. So evidently, she believes there are 9th Amendment rights, but does not know if self-defense is a right. But if rights exist, how can self-defense from harm possibly not be a right?
The problem here is much greater than the views of one judge. Sotomayor’s views reflect the mainstream majority. Most legal scholars and judges do not understand the Ninth Amendment. They really do not know what rights are included in those “others” that are recognized and protected by that amendment. They do not understand natural rights. Sadly, the concepts of natural law and natural rights are not taught in law schools. They may be mentioned, but they are not clearly explained.
Indeed, very few people understand that there exists a universal ethic that applies to humanity and that is its moral imperative. Most people believe that morality has a religious origin, or that it should be based on tradition, or that it is an arbitrary socially-constructed convention. Few have learned about a natural moral law derived from premises based on human nature.
This moral ignorance ultimately leads to tyranny, oppression, and at the extreme, mass murder. Unlike toasters, human babies do not come with instructions. A few libertarians understand natural law, but even most folks who think they favor freedom do not understand what it means and where it comes from. So the problem is not the views of a particular judge, but the problem of human being not understanding the moral law that flows from their own human nature.
-- Fred Foldvary
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Copyright 2008 by Fred E. Foldvary. All rights reserved. No part of this material may be reproduced or transmitted in any form or by any means, electronic or mechanical, which includes but is not limited to facsimile transmission, photocopying, recording, rekeying, or using any information storage or retrieval system, without giving full credit to Fred Foldvary and The Progress Report.
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