Francis Bacon, on the Right to Self-Defense

Francis Bacon's discussion of the right to self-defense indicates that it was somewhat more limited (in the recognition of it) during his lifetime than it was at other times and in other places, and yet as a component of the justification of "necessity," it made his list of "regulae" -- number 5, I believe:

“Necessitas inducit privilegium quoad jura privata.”

“The law chargeth no man with default where the act is compulsory, and not voluntary, and where there is not a consent and election; and therefore if either there bee an impossibility for a man to doe otherwise, or so great a perturbation of the judgment and reason as a presumption of law mans nature cannot overcome such necessity carrieth a priviledge in it selfe.

“Necessity is of three sorts, necessity of conservation of life, necessity of obedience, and necessity of the act of God or of a stranger.”

Edward Coke, on the Right to Defend

In some circumstances, by the time of Edward Coke, even the killing of a person would be justified when necessary, as an act of self-defense.

Edward Coke: “If A. assault B, so fiercely and violently, and in such a place, and in such manner, as if B. should give back, he should be in danger of his life, he may in this case defend himself; and if in that defence he killeth A. it is se defendendo, because it is not done felleo animo; so the rule is, when he doth it in his own defence, upon any inevitable cause, Quod quis ob tutelam corporis sui fecerit, jure id fecisse videtur.”

~That which is done in defense of one’s body is right.~

Edmund Burke, on the Right to Defend 4

Edmund Burke:

“That fury which arises in the minds of men, on being stripped of their goods and turned out of their houses by acts of power, and our sympathy with them under such wrongs, are feelings implanted in us by our Creator, to be (under the direction of His laws) the means of our preservation. Such fury and such sympathy are things very different from men's imaginary political systems concerning governments. They arise out of instinctive principles of self-defence, and are executive powers under the legislation of nature, enforcing its first laws. These principles, prince and commonwealth (whatever they may think their rights) cannot always attack with perfect impunity. If princes will, in cold blood, and from mistaken ideas of policy, excite the passions of the multitude against particular descriptions of men, whether they be priests or nobility, in order to avail themselves of the assistance of that multitude in their enterprizes against those classes, let them recollect that they call in the aid of an ally more dangerous to themselves than those whom they are desirous of oppressing.”

Edmund Burke, on the Right to Defend 3

“There remain some other heads upon which the Acts have changed the course of the common law; and first, with regard to the right of self-defence, which consists in the use of arms. This, though one of the rights by the law of nature, yet is so capable of abuses, that it may not be unwise to make some regulations concerning them; and many wise nations have thought proper to set several restrictions on this right, especially temporary ones, with regard to suspected persons, and on occasion of some imminent danger to the public from foreign invasion or domestic commotions. But provisions, in time of trouble proper, and perhaps necessary, may become in time of profound peace a scheme of tyranny. The method which the Statute Law of Ireland has taken upon this delicate article, is, to get rid of all difficulties at once by an universal prohibition to all persons, at all times, and under all circumstances, who are not Protestants, of using or keeping any kind of weapons whatsoever. In order to enforce this regulation, the whole spirit of the common law is changed; very severe penalties are enjoined; the largest powers are vested in the lowest magistrates. Any two Justices of Peace, or magistrates of a town, with or without information, at their pleasure, by themselves, or their warrant, are empowered to enter and search the house of any Papist, or even of any other person, whom they suspect to keep such arms in trust for them. The only limitation to the extent of this power is, that the search is to be made between the rising and setting of the sun; but even this qualification extends no farther than to the execution of the Act in the open country; for in all cities and their suburbs, in towns corporate and market towns, they may, at their discretion, and without information, break open houses, and institute such search at any hour of the day or night. This I say they may do at their discretion, and it seems a pretty ample power in the hands of such magistrates.”

Edmund Burke, on the Right to Defend 2

Burke: “One of the first motives to civil society, and which becomes one of its fundamental rules, is, that no man should be judge in his own cause. By this each person has at once divested himself of the first fundamental right of uncovenanted man, that is, to judge for himself, and to assert his own cause. He abdicates all right to be his own governor. He inclusively, in a great measure, abandons the right of self-defence, the first law of nature. Men cannot enjoy the rights of an uncivil and of a civil state together. That he may obtain justice he gives up his right of determining what it is in points the most essential to him. That he may secure some liberty, he makes a surrender in trust of the whole of it.”

That may seem to support the Barnes court’s point of view, but it doesn’t.  Burke is clearly talking about a couple of things that, in the “state of nature,” would be considered a part of the right to self-defense: 1st, revenge and punishment, and 2nd, obtaining justice in cases where the state, if it existed, could have obtained it for him.  He is not saying that damages are the equivalent of a constitutional or proto-constitutional right, and that people in society may not repel a present attack with reasonable force, where government is not defending them and where government itself is the attacker, just because they can attempt to sue for damages, later.

I like the Constitution, but ''Oops''

We never talk about this, but in this one lone instance, the Founders were a little lazy.  Some changes were made near the end of the Constitutional Convention, and this apparently resulted in some of the text (as it had been formally written out) being incorrect.  Instead of rewriting it, they just put a little note at the end, stating how it should have read.

Edmund Burke, on the Right to Defend

Edmund Burke: “A man desires a sword: why should he be refused? A sword is a means of defence, and defence is the natural right of man, – nay, the first of all his rights, and which comprehends them all.”

Various States on the Right to Defend, Present Version

Of the 29 states which have natural rights language in their Constitutions, 19 of them specifically mention the right to defend life and liberty and protect property (the others generally using something based on the Declaration of Independence, instead).  Additionally, a number of states' constitutions list the right to bear arms in defense of oneself; Nebraska characterizes this as an inherent and inalienable right.

Arkansas, Section 2. All men are created equally free and independent, and have certain inherent and inalienable rights; amongst which are those of enjoying and defending life and liberty; of acquiring, possessing and protecting property, and reputation; and of pursuing their own happiness. To secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.

California, SECTION 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

Florida, Section 2. All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property; except that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law. No person shall be deprived of any right because of race, religion, national origin, or physical disability.

Idaho, Section 1. All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty; acquiring, possessing and protecting property; pursuing happiness and securing safety.

Iowa, SECTION 1. All men and women are, by nature, free and equal, and have certain inalienable rights — among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness.

Kentucky, Section 1. All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:
First: The right of enjoying and defending their lives and liberties.
Second: The right of worshipping Almighty God according to the dictates of their consciences.
Third: The right of seeking and pursuing their safety and happiness.
Fourth: The right of freely communicating their thoughts and opinions.
Fifth: The right of acquiring and protecting property.
Sixth: The right of assembling together in a peaceable manner for their common good, and of applying to those invested with the power of government for redress of grievances or other proper purposes, by petition, address or remonstrance.
Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.

Maine, Section 1. All people are born equally free and independent, and have certain natural, inherent and unalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and of pursuing and obtaining safety and happiness.

Massachusetts, Section 1. All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.

Montana, Section 3. All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life's basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways. In enjoying these rights, all persons recognize corresponding responsibilities.

Nevada, Article I, Section 1. All men are by Nature free and equal and have certain inalienable rights among which are those of enjoying and defending life and liberty; Acquiring, Possessing and Protecting property and pursuing and obtaining safety and happiness[.]

New Hampshire, Article I, Section 2. All men have certain natural, essential, and inherent rights - among which are, the enjoying and defending life and liberty; acquiring, possessing, and protecting, property; and, in a word, of seeking and obtaining happiness. Equality of rights under the law shall not be denied or abridged by this state on account of race, creed, color, sex or national origin.

New Jersey, Article I, Section 1. All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.

New Mexico, Article II, Section 4. All persons are born equally free, and have certain natural, inherent and inalienable rights, among which are the rights of enjoying and defending life and liberty, of acquiring, possessing and protecting property, and of seeking and obtaining safety and happiness.

North Dakota, Article I, Section 1. All individuals are by nature equally free and independent and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing and protecting property and reputation; pursuing and obtaining safety and happiness; and to keep and bear arms for the defense of their person, family, property, and the state, and for lawful hunting, recreational, and other lawful purposes, which shall not be infringed.

Ohio, Article I, Section 1. All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.

Pennsylvania, Article I, Section 1. All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.

South Dakota, Article VI, Section 1. All men are born equally free and independent, and have certain inherent rights, among which are those of enjoying and defending life and liberty, of acquiring and protecting property and the pursuit of happiness. To secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.

Utah, Article I, Section 1. All men have the inherent and inalienable right to enjoy and defend their lives and liberties; to acquire, possess and protect property; to worship according to the dictates of their consciences; to assemble peaceably, protest against wrongs, and petition for redress of grievances; to communicate freely their thoughts and opinions, being responsible for the abuse of that right.

Vermont, Article I, Section 1. That all persons are born equally free and independent, and have certain natural, inherent, and unalienable rights, amongst which are the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety; therefore no person born in this country, or brought from over sea, ought to be holden by law, to serve any person as a servant, slave or apprentice, after arriving to the age of twenty-one years, unless bound by the person's own consent, after arriving to such age, or bound by law for the payment of debts, damages, fines, costs, or the like.