International Law and The Second Amendment
As we all know, this week the Court will hear what is arguably the most important case of the year, District of Columbia v. Heller. In Heller, the District of Columbia has presented comparative analysis of the practice of other countries in support of its gun control restrictions. Not surprisingly, this has led to several amicus briefs responding to the argument.
I will highlight some of the other briefs later, but today I wanted to emphasize a very interesting amicus brief by a group of international scholars from Australia, Belgium, Canada, England, France, Germany, Italy, Denmark and Portugal challenging the District of Columbia’s assertions. Here is a taste:
In the Petition for Writ of Certiorari, Petitioners represent that other nations have reached the same conclusion concerning handguns as they have. “[M]ost industrialized countries strictly control civilian access to handguns and allow the carrying of handguns for personal protection only under very restrictive conditions …” Petitioners repeat this assertion in their merits brief where they state: “Many cities, states, and nations regulate or ban handguns based on the unique dangers of those deadly weapons.” Contrary to this assertion, most foreign gun laws in democratic nations are not nearly as restrictive as those found in Washington D.C., where private individuals are burdened by an outright ban of all functional firearms in their homes.
Much of the brief focuses on country-by-country comparisons. But it also has some fascinating historical analysis of international law (citations and footnotes omitted):
Some of the earliest works on the subject of International Law were by fourteenth century Milanese scholar Giovanni da Legnano, whose work, De Bello, De Represealiis et de Duello was one of the first attempts to establish international rules for warfare. Legnano’s treatise closely examined the individual right of self-defense as the basis of establishing a derivative right of a nation to engage in war. Legnano believed that, “self-defense proceeds from natural law, and not from positive law, civil or canon.” Self-defense was not an artificial construct of positive law, but instead was an inherent instinct. Legnano did not confine the natural right to merely protecting one’s life. He explained that self-defense was proper not only in defense of life, but also in defense of one’s property, and that deadly force to protect that property was justified if necessary. Further, the principle of self-defense allows a person to come to the aid of a relative or friend whose person or property is being attacked. Finally, Legnano noted that a victim is not required to use only the exact level of force that his assailant uses by posing the rhetorical affirmation: “suppose a strong and vigorous man strikes me with his fist, and I am a poor fellow who cannot stand up to him with the fist. May I defend myself with a sword?”
Following in the footsteps of Legnano was the sixteenth century Spanish scholar, Francisco de Victoria. Victoria wrote several works on the subject of the “just war” and his classroom at the University of Salamanca became known as “the cradle of international law.” Like Legnano, Victoria believed that the justification for war was necessarily predicated upon adopting the individual right of self-defense as its derivative source. Thus, Victoria’s first proposition articulated the individual right of self-defense: Any one, even a private person, can accept and wage a defensive war. This is shown by the fact that force may be repelled by force. Hence, any one can make this kind of war, without authority from any one else, for the defense not only of his person, but also of his property and goods. The foundation established by Legnano and Victoria created the platform for the father of International Law, Dutch scholar, Hugo Grotius. His work, The Rights of War and Peace, is considered the cornerstone of modern International Law and Grotius is hailed as “the founder of modern civilized interstate relations.”
The essential elements of Grotius’ works were founded upon the precepts of self-defense and self-preservation. Grotius wrote that even human babies, like animals, have an instinct to defend themselves. Further, this instinct extended to the protection of property rights and was one of the fundamental elements of the social fabric of modern society, because if people were barred from using force to protect their property from those who would take it by force, then “human Society and Commerce would necessarily be dissolved.”
Grotius based his rules for war between nations predicated on the underlying individual natural right of self-defense and observed that the rationale for both were based upon the same moral principle: “[I]t is allowed to Repel Force by Force.” It is upon the foundation of the fundamental individual right of self-defense that the structure of International Law is built.
Second only to Hugo Grotius was 17th century scholar Samuel Pufendorf, whose eight volume masterpiece, Of the Law of Nature and Nations, incorporated theories of Grotius, and the philosophies Thomas Hobbes and John Locke. Pufendorf; like Grotius, used natural law theory to construct the law of nations. The primary natural law employed by Pufendorf was that of self-defense: “Defence is a thing of more ancient date than any Civil Command…” and that no state can therefore forbid self-defense.
The natural right to self-defense which forms the very core of the principles of International Law, has one final component which protects the means by ‘which the right can be exercised. Thomas Hobbes explained “it is in vain for a man to have a right to the End, if the right to the necessary means be denied him, it follows, that since every Man hath a right to preserve himself, he must also be allowed a right to use all the means, and do all the actions, without which he cannot preserve himself.”
I seriously doubt the Court will utilize foreign or international law materials in its decision. Nonetheless, I think the historical arguments presented by these international scholars may have more value than their contemporary comparative country analysis. We know from recent years that historical constitutional comparativism is the least controversial form of borrowing, embraced by liberal and conservative justices alike. I also would expect the Court to focus on constitutional history in its decision, and it is quite possible that the international context may play a part of that historical analysis.