The Right Of Self-Defense Protections Afforded Under the U.S. and Washington Constitutions
Origins of the Right of Self-Defense
Ancient legal systems did not usually punish people who injured or killed those threatening their families or property.
Persian king allowed Jews the use of weapons in self-defense (Esther 8:11)
Roman law granted “to all persons the unrestricted power to defend themselves,” their families, and their property. Citizens were explicitly permitted to keep and use weapons.
The use of weapons is vitally important because it allows those who are physically weak the opportunity to prevail against others who might try to take advantage of their weakness, putting a defender on more even
footing with their attacker.
Right of Self-Defense In England
In 1181, the Assize of Arms required all free Englishmen to own weapons. In the Thirteenth Century, King Henry III obligated every subject between the ages of 15 and 50 (even serfs!) to own a weapon other than a knife. In the Fourteenth Century, the Statute of Northampton restricted the right to carry weapons in certain public places. In 1671 Parliament severely restricted the right to own firearms. Within the next 15 years, kings Charles II and James II disarmed their political and religious rivals. In 1689 the people deposed the king and Parliament adopted the Bill of Rights, which clarified that subjects “may have arms for their defense suitable to their conditions.”
Right of Self-Defense in the American Colonies
Influenced by Blackstone’s Commentaries, which stated that the right to have arms was indispensable “to protect and maintain inviolate… personal security, personal liberty, and private property.” Several colonies required men (including indentured servants, but not slaves) to provide firearms for themselves and members of their households. Even when Virginia prohibited assemblies of more than five armed men, it made clear that individuals retained the right to bear arms for their own defense.
Right of Self-Defense and the United States Government
The Articles of Confederation required the states to maintain militia composed of armed citizen-soldiers, but no individual right to bear arms for self-defense. The U.S. Constitution, as originally drafted, allowed Congress to regulate and arm state militias, but did not include an individual right to bear arms. In ratifying the Constitution, six states demanded that an amendment be adopted to secure citizens’ right to keep and bear arms. The Second Amendment’s language was based on existing state constitutional provisions.
Right of Self-Defense and the States
1776 – Pennsylvania is first state to explicitly protect citizens’ right to use arms in self-defense. 1790-1836 – Almost every new state constitution ratified in this era includes right to bear arms in self-defense. 1850 – Kentucky becomes first state to allow government to ban concealed weapons. 1875 – Missouri becomes the first state to specify that all citizens may use firearms to defend their “home, person, and property.”
Right of Self-Defense and the States
1889 – The Washington Constitution secures “the right of the individual citizen to bear arms in defense of himself, or the state,” but it prohibits individuals or corporations from organizing or employing “an armed body of men.” 1971 – New Mexico protects the citizen’s right to use weapons “for security and defense, for lawful hunting and recreational use and for other lawful purposes.”
Right of Self-Defense and the States
1978 – Idaho prohibits “licensure, registration or special taxation on the ownership or possession of firearms or ammunition.” It also prohibits the confiscation of firearms, “except for those actually used in the commission of a felony.” Today, 41 states have constitutional provisions that protect an individual’s right to bear arms in selfdefense. California, Hawaii, Iowa, Kansas, Maryland, Massachusetts, Minnesota, New Jersey, New York, and Virginia are the states lacking such constitutional protections.
How Courts Have Dealt With Gun Restrictions Restrictions Approved by Courts
Restrictions Disapproved by Courts
Trigger Lock or Storage in Safe Required when Firearm Not in Use or in Possession of Owner.
Convicted Criminals Prohibited from Possessing Firearms.
Requiring License to Carry Weapon Outside of Home. (disputed) Prohibition on Carrying of Guns in “Sensitive Places,” such as Government Buildings, Churches, and Schools.
Requirement that Gun Permit Applicant State “Proper Cause” for Application. (disputed) Prohibition on Selling Handguns to Persons Under the Age of 21. Prohibition on Homemade Machine Guns. Prohibition on bringing into your state of residence a firearm obtained in another state.
Complete Ban on Ownership of Functional Firearm. Ban on Possession of Loaded Firearm in Public. (disputed) Ban on Private Firing Ranges. Complete ban on tasers or stun guns. Prohibition on non-citizens’ owning or possessing firearms. Ban on the possession, transportation, sale, purchase, storage or use of firearms in a declared state of emergency. Ban on possession of handgun ammunition. Washington government officials may not make it illegal for a person charged with a criminal offense to own a firearm while he is out on bail and awaiting trial.
Major Unresolved Constitutional Questions
To what extent does Second Amendment protect the possession of weapons outside of one’s home? How skeptical must judges be about laws that restrict citizens’ ownership or use of firearms? May governments impose licensing fees in excess of what is necessary to pay costs of the licensing program? May government deny Second Amendment protections to those accused of crimes, even if they have not been convicted?
Current Proposals That Threaten the Right of Self-Defense
Restriction on so-called “assault weapons.” Limits on number of rounds in an ammunition clip. Handgun ban. Prohibition on civilian use of bullet-proof vests. Extraordinary taxation on weapons and ammunition. Confiscation of non-compliant weapons. Requiring annual safety training and/or inspection of gun owners’ homes.
Rights Can Be Lost!
Although the Right of Self-Defense was deeply entrenched in English law and society, it has been almost eliminated there. In 1920 Parliament required anyone wanting to possess a firearm to get a permit from the local police chief. The police could deny the permit if they believed the applicant was “unsuitable” or lacked a “good reason” to own the weapon. On instructions from the government, police began actively discouraging applications to possess firearms for personal or home defense in 1937. In 1953 the “Prevention of Crime Act” made it illegal to carry firearms without lawful authority or “reasonable excuse.” By 1964 the government advised that “it should hardly ever be necessary to anyone to possess a firearm for the protection of his house or person.” This was made absolute in 1969. In 1967 Parliament revised the criminal laws to severely limit the circumstances in which “self-defense” could be claimed to justify inflicting harm on an attacker; use of force in defending property was prohibited.
The Consequences for Britain
A homeowner in Britain discovered two robbers in his home, and he held them at bay using a toy gun. The police arrived and arrested all three, charging the homeowner with using a gun to create fear in another. An elderly woman who scared off a gang of youths by firing a cap pistol was charged with the same offense. In 1999 a farmer shot two burglars who had broken into his house, and one of them died. The farmer was sentenced to life in prison. The wounded burglar, released after serving 18 months of a three-year sentence, sued the farmer for causing his injury. In 2001 Britain had the highest level of homicides in Western Europe; violent crimes in that country were three times as frequent as in the next-worst country. In 2008 Parliament modified the laws to broaden the range of defensive actions that could be permissible. In September 2011 the government announced that homeowners would be permitted to use “whatever force necessary” to defend themselves and their property against intruders.
This presentation was prepared by Dave Roland, Director of the Stiles Center for Liberty in Olympia, Washington. Please feel free to share it with anyone you think would be interested, although please remember to credit Mr. Roland with creating it. If you are interested in having Mr. Roland deliver the talk associated with this presentation in your community, please contact Jessica Bowman at (360)956-3482 or jbowman@myfreedomfoundation.org.