I guess Hadley Arkes has more work to do on the Natural Law adult education of the Court and politicians.
This is one of the more interesting exchanges during the hearing.
COBURN: Thank you.
Let me follow up with one other question. As a citizen of this country, do you believe innately in my ability to have self-defense of myself -- personal self-defense? Do I have a right to personal self- defense?
SOTOMAYOR: I'm trying to think if I remember a case where the Supreme Court has addressed that particular question. Is there a constitutional right to self-defense? And I can't think of one. I could be wrong, but I can't think of one.
SOTOMAYOR: Generally, as I understand, most criminal law statutes are passed by states. And I'm also trying to think if there's any federal law that includes a self-defense provision or not. I just can't.
What I was attempting to explain is that the issue of self- defense is usually defined in criminal statutes by the state's laws. And I would think, although I haven't studied the -- all of the state's laws, I'm intimately familiar with New York.
COBURN: But do you have an opinion, or can you give me your opinion, of whether or not in this country I personally, as an individual citizen, have a right to self-defense?
SOTOMAYOR: I -- as I said, I don't know.
COBURN: I'm talking about your...
SOTOMAYOR: I don't know if that legal question has been ever presented.
COBURN: I wasn't asking about the legal question. I'm asking about your personal opinion.
SOTOMAYOR: But that is sort of an abstract question with no particular meaning to me outside of...
COBURN: Well, I think that's what American people want to hear, Your Honor, is they want to know. Do they have a right to personal self-defense?
Do -- does the Second Amendment mean something under the 14th Amendment? Does what the Constitution -- how they take the Constitution, not how our bright legal minds but what they think is important, is it OK to defend yourself in your home if you're under attack?
In other words, the general theory is do I have that right? And I understand if you don't want to answer that because it might influence your position that you might have in a case, and that's a fine answer with me.
But I -- those are the kind of things people would like for us to answer and would like to know, not how you would rule or what you're going to rule, but -- and specifically what you think about, but just yes or no. Do we have that right?
SOTOMAYOR: I know it's difficult to deal with someone as a -- like a judge who's so sort of -- whose thinking is so cornered by law.
COBURN: I know. It's hard.
SOTOMAYOR: Could I...
COBURN: Kind of like a doctor. I can't quit using doctor terms.
SOTOMAYOR: Exactly. That's exactly right, but let me try to address what you're saying in the context that I can, OK, which is what I have experience with, all right, which is New York criminal law, because I was a former prosecutor. And I'm talking in very broad terms.
But, under New York law, if you're being threatened with eminent death or very serious injury, you can use force to repel that, and that would be legal. The question that would come up, and does come up before juries and judges, is how eminent is the threat. If the threat was in this room, "I'm going to come get you," and you go home and get -- or I go home.
I don't want to suggest I am, by the way. Please, I'm not -- I don't want anybody to misunderstand what I'm trying to say.
(LAUGHTER)
Now I was on the edge of my seat here and I am left wondering.
Did the Judge want to blunt out that there is a natural law of self defense and suddenly recalled the can of worms that was with Clarence Thomas and stopped?
Or is she a pure positivist in the tradition of Holmes ?
What is perhaps more disappointing is that Coburn did not utter those words. Perhaps he was afraid of that too. One would have to get into Natural Law theory that involves of course God and Stuff (Is quoting St Thomas Aquinas Foreign Law?) and that makes everyone nervous from the liberal democrats to Libertarian Republicans that talk about rights but at times gets hazy on where these rights come from.
Even though I expect most people think in their terms as a Human Being they have a natural law right by God for self preservation with in certain limits However to open up that can of worms (and the Const is not creating a new right but a preexisting one and a inherent one regardless of who you are) then we might have to contemplate what the natural law means in other categories.
Which of course gives the shivers to people on all sides.
More material here
Kopel, Gallant, & Eisen, “The Human Right of Self-Defense,” 22 BYU Journal of Public Law 43 (2008).
Kopel, “Self-defense in Asian Religions,” 2 Liberty Law Review 79 (2007).
Kopel, “The Catholic Second Amendment,” 29 Hamline Law Review 519 (2006).
at this link Heller Discussion Board: Miller, Colt .45s and Natural Law Friday
Also see this Law review article on the topic available for free download The Natural Right of Self-Defense: Heller's Lesson for the World available for free download.
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