The Right to Armed Self-defense in Light of Law Enforcement Abdication

The Right to Armed Self-Defense in Light of Law

Enforcement Abdication

DAVID E. BERNSTEIN*

ABSTRACT

This article defends the position that the right of armed self-defense

remains important today, particularly in light of the civil unrest during

Summer 2020.

The article proceeds in three parts. The first part summarizes arguments from

various prominent commentators that the right to self-defense with firearms is

anachronistic in the contemporary United States. These critics argue that

Americans can and should rely solely on professional law enforcement officers

to protect them.

The second part of the article focuses on how this argument has been under-

mined by the events of the summer of 2020. This part documents, in great detail,

the failures of law enforcement in reacting to looting, rioting, and other illegal

behaviors that threatened the well-being of the public. First, many police

departments received implicit or explicit orders from their political supervisors

to “stand down.” Second, in many instances the police themselves were unwill-

ing or unable to combat lawless behavior. If police consistently fail to enforce

law and order, the argument against the individual right to bear arms for self-

defense purposes significantly weakens.

Finally, the last part of the article discusses examples of individuals and

groups of citizens using firearms in self-defense during the recent unrest in

the absence of effective law enforcement. Some of these episodes are open to

criticism, whether because one believes that it is never worth using or even

threatening to use deadly force to defend property, or because the line

between justified self-defense and unjustified vigilantism is not always a

clear one. Nevertheless, if law enforcement is unwilling or unable to pre-

serve basic law and order, it is both inevitable that citizens will try to fill the

breach and desirable that law-abiding individuals should be given the

means to do so.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178

* University Professor and Executive Director, Liberty & Law Center, Antonin Scalia Law School,

George Mason University. The author thanks the Liberty & Law Center for providing funding for this

article and Nelson Lund for his helpful comments. Aaron Gordon provided invaluable research

assistance. © 2021, David E. Bernstein.

177

I. ARGUMENTS THAT THE INDIVIDUAL RIGHT TO BEAR ARMS IS

OBSOLETE BECAUSE OF THE EXISTENCE OF MODERN POLICE

DEPARTMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

II. LOCAL GOVERNMENT’S FAILURE TO ENFORCE LAW AND ORDER IN

SUMMER 2020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185

III. SELF-HELP IN THE WAKE OF OFFICIAL ABDICATION . . . . . . . . . . . . 202

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208

INTRODUCTION

The individual right to keep and bear arms has two primary rationales. The first

is to provide citizens with a means to oppose tyrannical government. The second

is to provide citizens with a means to defend themselves, their loved ones, and

their property from criminal aggression.

In District of Columbia v. Heller,

1

the Supreme Court held for the first time

that the Second Amendment protects an individual’s right to possess a handgun.

Heller invalidated a D.C. law that in practice amounted to an “absolute prohibi-

tion of handguns held . . . for self-defense in the home.”

2

The Court proclaimed

that self-defense is “the central component of the right” to keep and bear arms.

3

Four Justices dissented.

The majority and dissent clashed over whether the right to self-defense with

firearms is anachronistic in modern times when police forces are expected to

enforce law and order. The majority observed that, although “[u]ndoubtedly

some think that the Second Amendment is outmoded in a society . . . where well-

trained police forces provide personal security,” it was “not the role of th[e]

Court to pronounce the Second Amendment extinct.”

4

The dissenting Justices, by

contrast, asserted that the mid-nineteenth-century “development of modern urban

police departments, by diminishing the need to keep loaded guns nearby in case

of intruders, . . . ha[s] moved any . . . right” to armed home defense “even further

away from the heart of the Amendment’s more basic protective ends.”

5

Two years later, the Supreme Court applied the right to keep and bear arms to

the states via the Fourteenth Amendment’s Due Process Clause in McDonald v.

City of Chicago.

6

The Court’s opinion referenced “self-defense” eighty-three

times.

1. 554 U.S. 570 (2008).

2. Id. at 636.

3. Id. at 599.

4. Id. at 636.

5. 554 U.S. at 715 (Breyer, J., joined by Stevens, Souter, & Ginsburg, JJ., dissenting).

6. 561 U.S. 742 (2010).

178 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 19:177

This article defends the position that the right to have the means of self-defense

is still important today, particularly in light of the civil unrest during the summer

of 2020. The unwillingness or inability of local authorities to stop looting, rioting,

and other lawless and violent behavior is powerful evidence that contrary to the

Heller dissenters’ position, Americans still need firearms to defend themselves.

Accepting that the Second Amendment protects the basic right of law-abiding

citizens to possess firearms for self-defense does not even begin to settle the issue

of what regulations of individual firearms possession might be constitutionally

permissible. Such a discussion is beyond the scope of this Article. But with the

individual right to own a firearm as yet endorsed by only a bare majority on the

Supreme Court, establishing that self-defense is not an anachronistic rationale for

that right is important.

Moreover, while Heller and McDonald only directly addressed self-defense

within the home, a constitutional right to self-defense implies that the government

may not ban or otherwise unduly limit carrying firearms outside the home. As

Justice Thomas, speaking for himself and Justice Gorsuch, has written, “I find it

extremely improbable that the Framers understood the Second Amendment to

protect little more than carrying a gun from the bedroom to the kitchen.”

7

Some

regulation of public carry is permissible, according to Thomas, but “an effective

ban on all forms of public carry is not.”

8

Some lower courts agree with Thomas,

9

while other courts have held that any

right to possess a firearm for self-defense outside the home is outside the core of

the Second Amendment. These latter courts apply a very weak version of inter-

mediate scrutiny (bordering on rational basis) with a strong presumption favoring

government regulation.

10

In practice, this means that these courts uphold “may

carry” laws

11

applied so stringently that only a tiny fraction of the relevant popu-

lation is eligible to obtain a license to carry a firearm. Yet the looting, rioting, and

general mayhem on display in the summer of 2020 in cities throughout the

United States, often unimpeded by law enforcement, buttresses the argument that

7. Peruta v. California, 137 S. Ct. 1995, 1998 (2017) (Thomas, J., dissenting from denial of

certiorari).

8. Id.

9. See Young v. Hawaii, 896 F.3d 1044, 1074 (9th Cir. 2018) (“for better or for worse, the Second

Amendment does protect a right to carry a firearm in public for self-defense”), vacated pending

rehearing (en banc), 915 F.3d 681, 682 (9th Cir. 2019); Wrenn v. District of Columbia, 864 F.3d 650,

661, 668 (D.C. Cir. 2017); Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012) (invalidating such a

ban and noting that “self-defense . . . is as important outside the home as inside”).

10. E.g., N.Y. State Rifle & Pistol Ass’n v. City of New York, 883 F.3d 45, 59 (2d Cir. 2018),

vacated and remanded, 140 S.Ct. 1525 (2020); Drake v. Filko, 724 F.3d 426, 430 (3d Cir. 2013);

Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir. 2013); Kachalsky v. County of Westchester, 701

F.3d 81, 96 (2d Cir. 2012).

11. May carry laws require a permit to carry a concealed handgun, with the issuance of such permits

lying at least partially under the discretion of local authorities. By contrast, “shall issue” laws require

authorities to grant a permit for a concealed handgun so long as the applicant has met the formal

statutory criteria for receiving a permit.

2021] THE RIGHT TO ARMED SELF-DEFENSE 179