The Right To Armed Self-Defense In The Light Of Law Enforcement Abdication

BY Herschel Smith
3 years, 8 months ago

David Bernstein, University Professor and Executive Director, Liberty & Law Center, Antonin Scalia Law School, George Mason University, has a paper on this very subject.

In it, he begins well enough.

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.

I would argue that criminal aggression envelopes both of the above two rationales, personal self defense and defense against tyranny.  Family, home and hearth need protection against both, and that was the cultural milieu within which men had and carried arms in colonial America, and in which the second amendment was crafted.  But a careful reading of Heller doesn’t exactly bring that point out.  In fact, while he uses the Heller ruling in the paper, the right to overthrow a tyrannical government really isn’t the core of Scalia’s arguments.  If it was, Scalia would have argued differently, and argued for more weaponry in the hands of the citizenry, and finally, argued against one of his core principles in the ruling.  One of his core principles is that the ruling doesn’t negate or find unconstitutional all gun control.  In fact, many traditional gun laws are left alone, untouched, and simply go without discussion other than to note that the ruling leave them alone.

Bernstein notes what the minority thought about the ruling.

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 some “[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 … Amendment extinct.” The dissenting Justices, by contrast, asserted that the midnineteenth-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.”

Readers know that we’ve addressed this issue many times before.  The minority report is a lie, and they know it.  Police do not have the responsibility to supply protection of anyone or anything, from life to property.  This is so commonly known now that it’s amazing that we have to repeat it.  See, for example, the following decisions.

Castle Rock v. Gonzalez

Warren v. District of Columbia

DeShaney v. Winnebago County

Bernstein continues with his study demonstrating that stand downs of police across the nation in the face of Antifa/BLM riots has cast new light on the necessity of armed self defense.  If the police aren’t there to do it, it’s necessary to do it ourselves.

But given the fact that the police aren’t responsible to do it, we were always responsible to do it ourselves, and the minority in Heller knew that.  Everyone who knows the law knows that.

But this still misses the primary point.  Bernstein later quotes a LEO writing at Daily Kos.

Another Daily Kos op-ed, this one by a former police officer, likewise argued that the “right to Bear Arms … became outdated and irrelevant once the country actually had a well-regulated militia,” which today is the National Guard; “Not only does the United States have a ‘well organized militia’ but every inch of the United States is protected by a police or sheriffs department.”

And now we’re to the primary point.  When the police think this way, they have become the agents of tyranny that Bernstein suggests necessitates the need for the second amendment to begin with.

They aren’t there to supply protection – the courts have repeatedly told us that.  But what they can do is extinguish your right of armed self defense, something we have seen many times in the past few months where police arrested people who engaged in that very thing rather than target the rioters.  We argue that this itself is tyranny.

For this reason, and more, I have always held that Heller was a very weak decision.  Arguing that armed self defense is protected under the second amendment games itself with silly arguments about the role of the police.  The discussion itself becomes a subterfuge and misdirect.  Heller was an odd opinion for the simple reason that it buries the real intent of the second amendment.

Despite the Court’s confident pronouncement, it is not at all clear that the Second Amendment was meant to protect a personal right of self-defense. It is, however, crystal clear that the Amendment was meant to protect the right to keep and bear arms to resist tyranny-as the Heller Court itself concedes. Yet strangely, by the time the sixty-four-page opinion has wound to an end, the Court has purged the Amendment of its revolutionary quality. Justice Scalia’s opinion never hints that the right to resist tyranny might still be alive and well and relevant to the Amendment’s interpretation, and it lays down rules that will make the right a functional nullity.

As a result, the opinion has an odd quality. Justice Scalia insists that he is being true to the language and history of the Constitution. Yet by the close of the opinion, the purpose that clearly and plainly appears in the language and history-the right of resistance-has disappeared, but the right of self defense-which is much less clearly present, if present at all, in the language and history-has taken center stage.

[ … ]

Heller offers a Second Amendment cleaned up so that it can safely be brought into the homes of affluent Washington suburbanites who would never dream of resistance-they have too much sunk into the system–but who might own a gun to protect themselves from the private dangers that, they believe, stalk around their doors at night. Scalia commonly touts his own judicial courage, his willingness to read the Constitution as it stands and let the chips fall where they may. But Heller is noteworthy for its cowardice.

Only when the second amendment is seen as protection against and amelioration of tyranny does it take on the life it should.

Armed self defense, against aggressors both individual and collective, is a God given right, and even duty.  It is merely recognized in the constitution, a covenant document and contract with the people.  Honoring that covenant brings blessings, breakage of the covenant brings curses of all kinds.

King George found out well what kind of curses it might bring.  The American war of independence was known in royal circles as being a “Presbyterian rebellion.”  He found out that he wasn’t the author of rights.  That domain belongs to the Almighty.

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  1. On October 4, 2020 at 10:10 pm, Frank Clarke said:

    (heh heh heh…)

  2. On October 4, 2020 at 11:34 pm, Brad said:

    The Constitution is not a living document. And it’s by no means ambiguous. Weak kneed Libtards can interpret it anyway they want. However it’s still, eventually, the law of the land.

  3. On October 5, 2020 at 5:36 am, Matt said:

    “ Yet strangely, by the time the sixty-four-page opinion has wound to an end, the Court has purged the Amendment of its revolutionary quality.”

    Of course it does. Scalia was still a tyrant in black. Tyrants intend to rule.

  4. On October 5, 2020 at 5:39 am, Duke Norfolk said:

    Some excellent analysis, as usual, Herschel. Thanks.

  5. On October 5, 2020 at 6:50 am, Nosmo said:

    Herschel, has a defense ever been successfully presented using these cases for actions of self defense which lead to criminal charges and attempted conviction by governmental prosecutors? Or, has any defense at all ever been attempted using these cases? It would seem that in the absence of availablility of protective action(s) by police agencies – I’m thinking here particularly of instances in which a restraining order existed – individual action(s) of identifiable self protection would receive legal shelter from prosecution under these decisions.

    And, if it applies in well defined cases – where a restraining order exists – it should extrapolate well to other types of self protection / self defense cases.

    I suspect the government would seek, by any means available, to avoid any positive judgment since doing so would set the precedent such that the legal irrelevance of government-operated police could not be denied.

  6. On October 5, 2020 at 7:14 am, Sanders said:

    As I’ve said many times, SCOTUS pretends that, “….shall not be infringed.” is not even a part of the Second Amendment.

    That, in and of itself, negates their legitimacy to even take up a Second Amendment question.

  7. On October 5, 2020 at 7:28 am, The Wretched Dog said:

    Herschel: Excellent analysis, as always.

    My son is currently living in Australia with the consequences of “the police are there to protect you” – where one cannot defend “hearth and home” (an ancient right of Englishmen, and legal precursor to our American “keep and bear arms”). (Yes, I know the right of self defense is God-ordained; it also has deep political heritage in British constitutionalism, of which the US is chief heir.)

    He was recently arrested and charged, because he secured a firearm to defend the family against a home invasion. Didn’t use it, merely secured it. The perpetrators of the home invasion were never charged, despite forcible entry and theft of property. The police hauled him off in cuffs, left the property unsecured (door broken open), with an eleven year-old child left behind – and the perpetrators un-cuffed, un-arrested, and free to take everything they wanted. All because my son “used a firearm in an act of violence.”

    You are right, of course, that government is neither the true author nor the guarantor of our rights, and thus cannot legitimately rescind or limit them. But it will certainly attempt to do so whenever convenient. Note the regime of tyranny in Australia in gross over-reaction to the Covid scare.

    And not merely Australia. The tyrannical inclinations of or own state and local governing authorities, using the Covid ‘pandemic’ as excuse, should alert everyone to the danger.

    They want us ruled – or dead. There is no in-between.


  8. On October 5, 2020 at 8:36 am, Longbow said:

    The purpose of the 2A is NOT “…to provide citizens with a means…”.

    The Federal government didn’t self generate into existence and then start handing out “rights” like candy. The 2A is NOT a gift, a grant, an endowment, a bestowal, or an allowance.

    The 2A is a written guarantee that the Natural Right possessed by Free Men shall not be fucked with, even at the edges, by ambitious politicians and policemen.

  9. On October 5, 2020 at 12:20 pm, Gospace said:

    “Not only does the United States have a ‘well organized militia’ but every inch of the United States is protected by a police or sheriffs department.”

    Where I live- in a rural county in CNY, there is no police department, and sheriffs or State Police could be a minute or 20 minutes away. My home is not protected by either. They can show up after the fact.

    In more rural counties in NY, sheriff or State Police (if the latter are ever even in the area) could be longer.

    And I understand out in western states homesteads are even more isolated.

  10. On October 5, 2020 at 12:25 pm, dad29 said:

    It would seem that in the absence of availablility of protective action(s) by police agencies …

    Think no further than Kenosha, WI. While it’s very likely that the ‘self-defense’ line will win the day for Kyle, what about the demonstrated need for collective “guardian” action in Kenosha and other places?

    Citizens DELEGATE responsibility/authority to police, but that does not mean that citizens no longer have that responsibility/authority. Near-future, there will be some cases on this point, so long as the oh-so-sophisticated media insist that Kyle’s “guardian” action was just “vigilante” (wrinkle nose here) activity.

  11. On October 5, 2020 at 12:27 pm, GWB said:

    never hints that the right to resist tyranny might still be alive and well and relevant to the Amendment’s interpretation
    As you point out: when we abdicate our protection to someone else, that is, in itself, tyranny. We have now become subjects of the other, instead of free citizens.

    According to many, we no longer have need to arm ourselves against potential tyranny because the state will protect us from it.
    *needle scratch* Say whaaaat?

  12. On October 5, 2020 at 12:29 pm, GWB said:

    But Heller is noteworthy for its cowardice.
    A cowardice against which Thomas has been pushing for some time, a cowardice centered on confronting the real point of the 2A.

  13. On October 5, 2020 at 12:37 pm, GWB said:

    Citizens DELEGATE responsibility/authority to police, but that does not mean that citizens no longer have that responsibility/authority.
    The problem being, that in our current comfortable state of being, the citizens have abdicated, rather than delegated that responsibility/authority. And, in so doing, have made themselves subjects to the power they are supposed to retain.

    And THIS is why we have the troubles we do today.

  14. On October 5, 2020 at 1:01 pm, CatoRenasci said:

    No mention of the English Bill of Rights of 1689? One argument for the self-defense aspect of the 2nd Amendment is that, in part, it simply codifies a pre-existing right reserved (as do many of the amendments in our Bill of Rights), the right to self-defense inherent in all men (and women) and as explicitly enumerated in the English Bill of Rights.

  15. On October 5, 2020 at 1:09 pm, MTHead said:

    Sanders@ is spot on. Something the court/government in general refuses to acknowledge is that the words, shall not be infringed, is for them. NOT US!
    It tells THEM their not allowed to go there.
    And since anything in any state or constitution of any state to the contrary is notwithstanding. It has no authority under the law. That’s what Heller should have said. It doesn’t matter what authority government bestows on the police. Or what roll the standing army plays in protecting society.
    The 2nd. disavows their presumptions of disarmament.

  16. On October 5, 2020 at 2:18 pm, George 1 said:

    IMHO the National Guard in modern America should not be considered the militia. They are obviously part of the standing American military structure. The States use them but when they can be nationalized by the Federal government and sent all over the world I don’t think they can be really considered militia. They are government controlled not citizen controlled.

  17. On October 5, 2020 at 2:27 pm, Mike Owens said:

    Heller v DC was a well-crafted case brought to the courts specifically to answer two questions: whether the 2nd Amendment was an individual right, and if a complete ban on classes of firearms was constitutional. It was limited in application to federal enclaves such as DC, eliminating any 14th Amendment implications. It was addressed to a ban on handgun ownership, not long arms, to avoid “assault weapons” complications. It worked.

    The Supremes voted 9-0 that the 2nd guarantees an individual right. Then 4 of them did a pretzel-like dissent which made the right meaningless. Scalia’s decision did NOT say most other gun laws were okie-dokie. He rightly pointed out that the questions before the court were limited and all other gun laws were not being decided. And as such, without other challenge, were presumably constitutional, just as all laws are without challenge to them.

    This purposeful misrepresentation, that Heller validated all gun regulations, is invidious and must be stopped.

  18. On October 5, 2020 at 2:34 pm, Herschel Smith said:

    @Mike Owens,

    I think you need to go back and read the decision again.

  19. On October 5, 2020 at 5:33 pm, Randolph Scott said:

    “right to Bear Arms … became outdated and irrelevant once the country actually had a well-regulated militia,” which today is the National Guard;

    BULLSHIT, down their throats. I cannot call upon the National Guard to help defend my town, home, my family nor my neighborhood. The national guard is NOT my militia.

  20. On October 5, 2020 at 8:22 pm, The Wretched Dog said:

    Some very good comments above. With respect to the National Guard as the modern incarnation of the militia – it is, by law, the organized militia. However, simultaneously it is also the second component – by law – of the US Army. It, along with the US Army Reserve together make up the Reserve forces of the US Army.

    Compo 1: Regular Army (active duty force)
    Compo 2: The National Guard – a fully integrated, federal force;
    Compo 3: The US Army Reserve – part-timers in units that are similar to, but are not National Guard.

    The real militia, as commenters here understand, is the unorganized militia composed of, again – by law – males from 18 to 45, plus female officers of the National Guard (not sure I understand the logic there, but ok). Informally, the unorganized militia includes all citizens – not in federal service – who are willing.

    I spent 8 years in the regular army, and twenty-plus in the US Army Reserve. I may be too old to be formally in the militia, but be certain sure that I consider myself to be so.

    The Wretched Dog
    Colonel, US Army (Ret.)

  21. On October 5, 2020 at 10:02 pm, George 1 said:

    Thanks for your service Wretched Dog!!!

  22. On October 6, 2020 at 9:12 am, Dirk said:

    Great work Hershel. When your on, your on. I appriciate your efforts, your dedication. Only read you when Pete puts you up over on WRSA. Always a point to your stuff, when he does.

    Anyway good work.


  23. On October 6, 2020 at 12:09 pm, JFP said:

    “This purposeful misrepresentation, that Heller validated all gun regulations, is invidious and must be stopped.”

    Right, which makes Heller and McDonald pointless because they’ve been ignored for ten years now by state courts and lower fed courts or used to justify various gun bans and other restrictions because the rulings were only about the individual right to own a gun in your home, not carrying them. That bans on rifles or magazines of certain types are constitutional still.

    Heller was Justice Scalia trying to split the baby and prevent untold civil strife occurring if the court had upheld DC and Chicago’s bans, basically nullifying the 2A without repealing it. A delaying action at best that has led to well, untold criminal actions against innocent Americans.

  24. On October 6, 2020 at 12:20 pm, Herschel Smith said:


    The Heller/McDonald decisions did nothing more than justify a right to own a weapon INSIDE THE HOME, subject to the limitations of local and state laws regarding “may issue” protocol and approval by CLEOs (or disapproval). This is why federal courts everywhere have ignored those decisions, and NY, Illinois, Hawaii, Ca and other places still infringe.

    Under a different ruling thousands of onerous state and local laws would have been overturned overnight.

    It didn’t split the baby. It ran from the issue.

  25. On October 6, 2020 at 5:04 pm, Johno said:

    The Wretched Dog, I’m sorry to hear about your son. On behalf of other freedom-loving Aussies, I apologise for our government thugs’ actions. That the porkforce left minors in danger means they abbrogated their duty of care, and should be sued for that. All residents, citizens or no, are in danger from government thugs here, all but the very rich that is. They, and their political chattels, have no need of self-defence, others provide it for them. Whereas ordinary people have no rights whatsoever. In some states, NSW comes to mind, defence of self, family or others with a gun, even if unfired, is an offence in and of itself, unless you’re of the ruling class or their sycophantic protective thugs.

  26. On October 6, 2020 at 5:12 pm, JFP said:

    “It didn’t split the baby. It ran from the issue.”

    Agreed, but many have tried to sell it as a compromise. Typical supreme court politics.

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You are currently reading "The Right To Armed Self-Defense In The Light Of Law Enforcement Abdication", entry #25812 on The Captain's Journal.

This article is filed under the category(s) Second Amendment and was published October 4th, 2020 by Herschel Smith.

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